localities. In Edinburgh, as already noticed, the The period required by law for preparation previous to admission is not more than eighteen months. "A man in six months," says Professor Maconochie, may qualify himself to pass his Civil Law examination." He may then in the following year go up, and he does, practically speaking, then go up for his Scotch Law examination; and therefore the answer to the question is eighteen months." There is thus no better security in Scotland than in other parts of the United Kingdom against incompetency in the professional man; no evidence of competency beyond what may be collected from public opinion and the position he holds in his Profession. This may, in some degree, be relied on in the case of the barrister. In the case of the solicitor, the test is more dubious, and the consequences of the incapacity more dangerous; nor is the client protected from such danger by the damages which the law allows him, in case of palpable mistake in practice, against the solicitor. On the whole, then, so far from presenting a model to guide us in the improvement or extension of Legal Education in England or Ireland, the Scotch system and practice seem to stand in need of considerable improvement themselves. as must at once be perceived, the whole educational principles involving criminal prosecution as on its system designed as preparation for it. Hence mode,-that is, not so much on the matter as the form the three characteristic features of her University of the prosecution, to which are given four hours a system are: 1. A high scale of preparatory study, week. This is followed by the Common Prussian previous to being even admitted to any of the "Criminal Prozess" (or Criminal Procedure), almost Faculty courses. 2. The immense number of pro- exclusively of Roman origin, or at least governed by fessors, and minute subdivision of subject and the principles of Civil or Roman Law, to which four labour. 3. The compulsory character of attendance hours are given weekly. The next is "Judicial and on lectures and examinations, and the reality and Legal Practice" generally, which is intended to fastringency given to them by the mode in which both miliarise the student with the discharge of the different are carried out. The object purposed to be attained offices to which he may be subsequently called, one or is thorough and extensive knowledge of theory, at the two hours weekly. These courses on Procedure are period when theory in all sciences is best studied, succeeded by a course on the "Landrecht," or the leaving to after exercise, for which every day's occu- strictly Prussian Criminal Code, which takes five pation furnishes opportunity, the application and de-hours weekly. Then follows a course on "Internavelopment of this theory in practice. In this view tional Law," three hours weekly; and for such of the the State sees on one side that the best provision be students as intend devoting themselves to Rhenish made for instruction, both in quantity and quality, Jurisprudence and Practice, a course or courses on but requires in return that the person who applies for the "Rhenish Civil Procedure," "the Constitution it shall be well prepared to receive it, and that when of the Rhenish Judicature," and "the Code Napobe is occupied in receiving it he shall be bona fide so léon," attendance on which is required four hours; occupied, and not by a compliance with mere form on the course of the Civil Procedure, and on that of lose or escape from the reality. the others, probably three, four, or even five hours a The legal student, previous to his being admitted week are indispensable, but yet considered scarcely into the University, is required to produce a certificate adequate. At the University of Berlin that branch of his having passed in the Gymnasium, or public is, of course, badly represented; a student devoting school, where he has studied No. 2, or second degree himself to it would prefer studying it at some Rhenish of merit at the examination, which takes place on university, at Bonn, for instance. There are thus, in leaving it, usually called the Abiturienten Examen. all, thirteen courses of compulsory or obligatory lecThis examination, which is intended to test whether tures for the student in law, involving, if confined to he be ripe for entrance and attendance in the Univer- one year, sixty-two lectures of one, or thirty-one of sity, is very extensive and rigorous, fully equal to the two hours per week; but as he is at liberty to divide examination in the second under graduate year at an the whole over three years, it may be considered as English University; it embraces a very ample course averaging about twenty lectures of one, or ten of two, of classics, and requires proof that the pupil is in a per week, or about four hours in continuous legal position to write Latin free at least from all gramma-study per day during the semestre or half-year-not tical error, &c. &c. The examination immediately excessive if applied to such studies exclusively. But preliminary to entering the University is rather of a in addition to these compulsory lectures, there cursory nature, the Abiturienten Examen just men- are others of a subsidiary character, provided for tioned being considered sufficient warranty for his such as are desirous of taking advantage of them. reception. The legal student then continues for three Several such courses are given by those who, withyears at the University; but even in Prussia he is not out holding the rank of Professor, extraordinary or necessarily restricted to a Prussian University, with ordinary, or receiving any salary from the Governthe exception of one half-year, which half-year must ment or the University, have acquired the "Venia be devoted to the study of the Prussian code. His at- docendi," or privilege of delivering lectures at the tendance on the lectures at the several universities, and University, and of receiving fees from the pupils his assiduity, must, however, be attested at the close attending them. Many of these lectures are developof each half-year by a certificate from the Professor ments of portions of the compulsory lectures, synwhose lectures he has attended. The lectures are chronous frequently with them, and in aid of those either compulsory, or of a general nature, which latter sections which the ordinary lecturer could not exbeing desirable only,but not absolutely necessary, are tend, consistently with the more general character of left to his discretion. The certificate of attendance his courses, and in justice to the objects of all his is required only for the former. The student is not listeners. There are thus three lecturers on the restricted to any particular order of study during the course of Privatrecht, two of whom more specially three years; he may cominence with any, and, in treat of the two great departments, "Lehn" and fact, as many as he pleases, as there is no examina- "Handelsrecht" (or feudal and commercial law). tion till the end of his career. The selection is often All these courses hitherto mentioned, whether comdetermined by the University at which he happens to pulsory or optional, are of a strictly legal character, be, or by the more or less eminence of the Professors and common to all legal students; but there is anoYour Committee having thus met with but little who occupy the different Chairs; but this in no wise ther class of lectures, to which we shall later have to assistance from home institutions, thought it right exempts from any branch or portion of the required advert, and which, in addition to the legal, the canto make such inquiries abroad as, by enabling them course, which continues the same in whatever order didate who wishes to qualify for official employment to judge more correctly of the present state of Legal it may be taken. The student usually begins with an must also attend. In fact, almost all the subjects of Education in other countries, and its effects on the outline of the science, or what is termed the " Ency-great importance, not only in this but in all the other Profession and population generally, might permit clopedia" (Methodologie), common to all other faculties, have two or more Professors treating on them to suggest effective means for its greater ex-branches of study, and though not obligatory, of con- the same subject concurrently. Each course genetension and improvement in ours. In that view they siderable advantage, and intended for the student's rally occupies a semestre or half a year, so as to adexamined Mr. Moriarty, who from having graduated own convenience. The "Naturrecht" (Natural Law, mit a very extensive treatment of each subject; the in the University of Dublin, and having studied at or the Philosophy of Jurisprudence) then follows. It lectures are given continuously, but do not appear to some of the principal universities of Germany, at takes four hours a week (two hours each day), be preceded or followed by examinations. Lately Heidelberg, Bonn, Berlin, &c. and recently occupied, peculiarity confined to law lectures, which, treating there has been a wish expressed by the government for three years, a Chair himself in an important in-of subjects more involved, and which might suffer by that the lecturers should introduce" Disputoria," or stitution, the Royal Academy of Trade in Berlin, being treated piecemeal, demand this exception from the examination virá roce of the student; but this, seemed well qualified, as well from his studies of the general rule of one hour only. These lectures though to a certain degree acted on, has not been sucEnglish as of Foreign Law, to furnish all necessary illustrate the abstract principles of Jurisprudence, by cessful, and has not been hitherto pursued to any information and useful suggestions on the subject. frequent reference to the practice of different coun- great extent at any of German Universities. The Though specifically bearing on the course pursued at tries, and are well calculated to give the student a want of such aids is however abundantly supplied by the University of Berlin, yet as the German Univer-general idea at least of its philosophy. These four other circumstances in the organization of these insities are all constituted and conducted very nearly lectures a week continue for about half a year, and stitutions. The subjects are treated not only, as alon the same principle, his evidence may be considered generally amount to about a hundred. The next course ready observed, by ordinary, extraordinary, and as applicable to all. comprised the "Institutes," or the "History and voluntary (or "Privat-Docenten") lecturers, but also The Faculty of Law or of Jurisprudence is one of Antiquities of Roman Law," to which are devoted six are further elucidated by private instruction. the Faculties (generally the second) of every German hours a week for half a year also. The Institutes are fact, under the designation of " Public," open to the University without exception. It presents the largest followed by the "Pandects," a subject considered of public at large; "Private," open to the University; opportunity and means of legal study to every student great importance in Germany, to which there are and "Most Private," confined to private or chamberwho wishes to avail himself of it, whether unprofes-given not less than ten hours weekly. The fourth class instruction, the pupil has lectures and teaching sional or professional. This, it may be alleged, is course embraces the "Erbrecht," (or the Law of of every description in abundance if he thinks proper the case in some at least of our own institutions, to avail himself of it. It is also to be observed, that such as the University of London; but there is this the compulsory lectures, especially, are far from being essential difference between this country and Germatters of form; they are diligently and attentively many, that no situation in which legal knowledge, of frequented, though usually lasting, as has been obwhatever description, is considered requisite is open served, for two hours, and are almost invariably taken to any candidate who has not gone through the down in writing by each student; the subjects of prescribed course of study fitted to attain that which they treat being of a nature to require a knowledge, and is not provided with a certificate atthorough familiarity with each detail, and being of testing such course, and the having passed through importance to him up to the end of his career. two examinations required in proof of his having mastered the several subjects which such course comprises. This applies not merely to judge, barrister, solicitor, notary, &c. of every grade, to those classes, in fine, which in this country are considered as strictly professional, but to every official in the civil service, of whatever rank, from the first minister of State to the lowest employé. It is the leading principle which regulates not only the entire judicial and official organization of the country, but, (To be continued.) In Inheritance), requiring three hours weekly. Then THE MAGISTRATE. Summary. that, contrary to popular opinion, no length of adverse enjoyment of lands, obtained originally by encroachment, will bar the public of the right in those lands which it once possessed. HIGHWAYS. trespassers. It was not because the road was ex-real and personal property to C. and D. (whom he tremely wide that a man had a right to encroach also made executors), upon trust to sell, and pay upon it; nor whether some part of the road where debts, &c. During the lifetime of C. and D. there was no encroachment was narrower than the B. and Co. sold the estate, and paid the surplus part complained of, where there was an encroach- into the hands of E. who was agent for C. and D. ment; nor whether other roads were wider or nar- Whilst the money remained in E.'s hands, C. and rower-wide or narrow, if the public had once D. died. E. also died soon after, leaving the Ar the recent Wilts Assizes holden at Devizes, a used it, however remote that time might be, the defendant his executor. The plaintiff having taken case (Reg. v. Edwards) was tried before Mr. Jus-public were still entitled to it; and certainly the out administration de bonis non, with the will of A. tice WILLIAMS, which involved a very important evidence did go to establish the fact that the public annexed, brought an action for money had and requestion as to user of a highway, and the right for used this road at their pleasure, and for their conve- ceived against the defendant; and it was held that the public to resume possession after a long lapsenience. Some of the inclosures had no doubt been it could not be sustained, for that the money in the of time. It appeared that the parish of Purton is contracted for a period of 45 years, and it had been defendant's hands was equitable and not legal a very large and extensive parish, having a great asked whether the public would have endured these assets, and therefore would not have been recoveramany highways, which lead in various directions. encroachments for such a long period if they had a ble by C. and D. in their representative character. By the sides of some of these highways many en- right to prevent it; that was certainly matter for croachments have been made from time to time by consideration, but then it must be coupled with the persons inclosing strips of ground lying between evidence. The jury returned a verdict of Guilty. that part of the highway which is stoned, and usually passed over by the public, and the adjoining old inclosures; some of the encroachments had existed for upwards of forty years. The ancient width of the road was eighty feet, and it had in the centre a stoned road of the width of nine feet running along the centre, with wide grass sides for THE LAWYER. Summary. W. F. If it were not for the County Courts which In Barker v. May (9 Barn. & Cr. 489), a testator devised to his executors, their heirs and assigns, his lands, upon trust to sell the same; and directed that the money arising from the sale should be deemed part of his personal estate, and that it should be subject to the disposition made concerning his personal estate. He then directed his personal estate to be sold, and when the money arising from the sale of his personal and real estate should be collected, he disposed of it in the manner he bequeathed a legacy to A. B.: it was held that the money arising from the sale of the real estate was equitable assets, and that a legatee could not maintain a suit in the Ecclesiastical Court to recover his legacy. Lord Tenterden, in that case, remarked, that it was quite clear the testator could not alter the legal character of the property, by directing that it should be considered part of his personal estate. Icattle to be driven along, as is usual in country keep interest barely alive, there would be utter mentioned in his will, and, among other dispositions, highways; these sides became by degrees to be encroached upon by squatters, and formerly these inclosures or encroachments on the sides of the road were but little regarded, but, in consequence of the change which has taken place by the introduction of railways, it has become important to get encroachments removed, and the highways restored to their original width. The only remedy against the encroacher after such a lapse of time was, by the common law, one of indictment for a nuisance, and it was contended, on the part of the prosecution, that as no length of time, under the common law, could legalise a nuisance, the parish was entitled to resume possession, notwithstanding it should be shewn that the encroachments had taken place a great number of years previously, for there could be no destruction or abandonment of the public right; a highway must always continue a highway; it could neither be extinguished, encroached upon, nor in any manner narrowed or inclosed, without the express authority of Parliament. In the above case it was clearly proved that fifty years ago the public had used the whole width of highway, from old hedge to old hedge, as right of way and passage for waggons, horses, sheep, and cattle, the soft grass sides being of very great advantage and of importance to large herds of cattle and flocks of sheep when traversing the country. The learned judge, in summing up, very clearly and positively laid down the law of the case to the jury. He stated there could be no doubt that, if the defendant made an inclosure or encroachment upon ground which at one time formed part of a public highway, he was guilty of a public nuisance; for, however wide a public highway might be, no man had a right to narrow it: if he did so, then, in the eye of the law, he committed a nuisance. It was .not sufficient to say that there was plenty of room left for public convenience: as well might it be said that one man may take 1,000l. from him who had 100,000. merely because there would be plenty left. Nor was it any answer to the indictment to say that this inclosure was erected a great many years ago, without any one attempting to interfere. No lapse of time of adverse enjoyment could deprive the public of the rights they once possessed. The simple question was, whether the inclosure of the defendant was erected on land which ever formed a highway? If so, then he was guilty of the charge laid against him. That it was erected on part of the waste between the fence and the formed road there was no doubt. There was, certainly, some difficulty in determining to what width a highway sometimes extended. It was not necessarily confined to the hard road, especially when there were fences beyond that road. On the other hand, it was not a necessary consequence that all the land between the fences must be considered a highway, it depended upon whether the public had used it as such or not. Again, it did not necessarily follow, because there were tracks of waggons and carts on the green sward, that it was a highway, because, by the law of the land, if a highway is out of repair, the public had a right to go on the adjoining land, and the tracks might have been made at such a time as this; but before the jury could come to the conclusion that the public went there, having no right, whilst the formed road was in repair, they must look upon the public as stagnation just now in matters affecting the THE PRACTICE OF WILLS. BOOK IV. ON WINDING UP THE ESTATE. CHAP. XI.-ON ASSETS. Equitable assets. -Equitable assets are such as can be reached only by the aid of a court of equity. The practical distinction between legal and equitable assets is, that the former are to be distributed among creditors according to the legal priority of their debts, but the latter are distributable pari passú among the creditors, without any distinction as to priority. (Plunket v. Penson, 2 Atk. 290.) Equity of redemption.-An equity of redemption of a term of years has been held to be equitable assets, and liable to all the debts equally. (The case of the creditors of Sir Charles Cox, 3 P. Wms. 341; Hartwell v. Chitters, Ambl. 308; Clay v. Willis, 1 B. & C. 372.) But personal assets in the name of a trustee, as a lease for years, bond, or annuity, have been held to be applicable as legal assets, although a creditor could not come at them without the aid of a court of equity. (Willson v. Fielding, 2 Vern. 763; Cox's Creditors, 3 P. Wms. 342). Proceeds of sale of realty.-In some of the older cases it was held that where land is devised to be sold by executors, or devised to executors to be sold, the proceeds arising from the sale are legal assets. But later cases have established that if land be devised to trustees to be sold for payment of debts, and the same persons are executors, the effect of that is to create a charge upon the land to the amount of the debts, and that when sold, the proceeds in the hands of the executors are equitable and not legal assets. (Lewin v. Okeley, 2 Atk. 50; Newton v. Bennet, 1 Bro. Ch. Ca. 134; Silk v. Prime, 1 Bro. Ch. Ca. 138, n. ; 2 Coll. 509, n. ; Batson v. Lindegreen, 2 Bro. Ch. Ca. 94; Bailey v. Ekins, 7 Ves. 319; and Shiphard v. Lutwidge, 8 Ves. 26.) In the latter case Lord Eldon said, that it made no difference whether the descent were broken or not, that is, whether the land were devised to trustees to sell, or descended to the heir charged with the debts. In Clay v. Willis (1 Barn. & Cr. 364), A. mortgaged lands in fee to B. and Co. with a power of sale, upon trust to repay themselves the moneys advanced, &c. and to pay over the surplus to A. his executors or administrators. Before any sale was made, A. died, having devised all his Power of appointment.-By the exercise of a general power of appointment, whether by deed or will, the property appointed will form part of the 2 Vern. 319; Hinton v. Toye, 1 Atk. 465; Bainassets of the appointor. (Thompson v. Taune, ton v. Ward, 2 Atk. 172; George v. Milbanke, 9 Ves. 190; Jenney v. Andrews, Madd. & Geld. 264.) But equity will not aid the non-execution of such a power. (Holmes v. Coghill, 7 Ves. 499.) CHAP. XII.-ON MARSHALLING ASSETS. Marshalling is the adjustment between several persons of their rights respectively inter se, in respect of a charge or claim, which, affecting all of them, or properties belonging to all of them respectively, has been or may be enforced in a manner not unjust as far as the person is concerned by whom it was or may be enforced, but not just as between the persons or properties liable,-a branch of jurisprudence known to the civil law, and which could not but belong, in some form more or less extensive, to an enlightened system of laws. (Sir J. L. K. Bruce, V.C. in Tombs v. Roch, 2 Coll. 499.) In courts of equity it is a general principle that if a party has two funds, a person having an interest in one only has a right to compel the former to resort to the other, if that is necessary for the satisfaction of both. (8 Ves. 388.) In favour of creditors.-Where the assets are partly legal and partly equitable, though equity cannot take away the legal preference on legal assets, yet if one creditor has been partly paid out of such legal assets, when satisfaction comes to be made out of equitable assets, the Court will postpone him until there is an equality in satisfaction to all the other creditors out of the equitable assets, proportionable to so much as the legal creditor has been satisfied out of the legal assets. (Morrice v. The Bank of England, Cas. temp. Talb. 220.) So, between specialty and simple contract creditors, where there are real and personal assets, the Court will not permit the specialty creditors to proceed against the personal assets, to the exclusion of the simple contract creditors, but will marshal the assets, and permit the creditor by simple contract, to stand in the place of the creditor by specialty, as against the real assets, to the extent that the latter may have exhausted the personal. (Willson v. Fielding, 2 Vern. 763; Galton v. Hancock, 2 Atk. 436; Selby v. Selby, 4 Russ. 341.) In Aldrich v. Cooper, 8 Ves. 381, a mortgagee of freehold and copyhold estates, also a specialty creditor, having exhausted the personal assets, simple contract creditors were held to be entitled to stand in his place, pro tanto, against both the freehold and copyhold estates. (See also Gwynne v. Edwards, 2 Russ. 289, n.) In Baldwin v. Belcher (3 Dr. & War. 173), it was decided by Sir E. Sugden, that where there are two creditors who have taken securities for their respective debts, and the security of the first creditor ranges over two funds, while the security of the second is confined to one of these funds, the Court will marshal the assets so as to throw the person who has two funds liable to his demand, on that which is not liable to the debt of the second creditor; and that the bankruptcy of the debtor will not prevent the application of the general rule, for the assignee stands in the position of the bankrupt. In Barnes v. Racster (1 Y. & C. C. C. 401), the following case occurred: A. having two estates, mortgaged both to B. then one to C. then both again to B. to secure both the original and a further advance, then both to D. The puisne incumbrancers had notice of the prior charges. The estates were not sufficient to pay all the mortgages, but one of the estates, called No. 32, was sufficient to pay B. in full: the Court would not, as between C. and D. marshal the securities, by directing B. to take his full payment out of No. 32, so as to leave C. the first incumbrancer on the other estate, but held that B.'s debt must be thrown rateably on both estates. Sir John Leach, M. R. in Greenwood v. Taylor, (1 Russ. & Myl. 185), held, that the mortgagee who has two funds, as against the other creditors who have but one fund, must resort first to his mortgage security, and can claim against the common fund only what the mortgaged estate is deficient to pay. But in Mason v. Bogg (2 Myl. & Car. 443), Lord Cottenham questioned the propriety of this decision, as he considered that a mortgagee having a double security, has a right to proceed against both, and to make the best he can of both. If the vendor of an estate, the contract for which was not completed in the lifetime of the testator, who was the purchaser, is afterwards paid his purchase-money out of the personal assets, the simple contract creditors of the testator shall stand in the place of the vendor, with respect to his lien on the estate sold, against the devisee of that estate. (Selby v. Selby, 4 Russ. 336.) In favour of legatees.-In the cases of legatees, against assets descended. a legatee has not so strong a claim to this species of equity as a creditor. But the mere bounty of the testator enables the legatee to call for this species of marshalling; that if these creditors, having a right to go to the real estate descended, will go to the personal estate, the choice of the creditors shall not determine whether the legatees shall be paid or not. (8 Ves. 396.) But where the real estate does not descend to the heir, but is devised to a stranger, the assets are not marshalled in favour of general legatees so as to throw the specialty creditors on the real estate devised. (Clifton v. Burt, 1 P. Wms. 678; Scott v. Scott, Amb. 383; S. C. 1 Eden, 458; Hamby v. Fisher, Dick. 105; S. C. Ambl. 128; Keeling v. Brown, 5 Ves. 359; Aldrich v. Cooper, 8 Ves. 397.) In Strickland v. Strickland (10 Sim. 374), Sir L. Shadwell, V. C. held that under the 3 & 4 Wm. 4, c. 106, s. 3, an heir to whom lands are devised by his ancestor, takes them as devisee to all purposes; and therefore the pecuniary legatees are not entitled to have the assets marshalled as against him. Where a creditor has a specific lien on the real estate, but resorts to the personal, the assets will be marshalled in favour of legatees. (Lutkins v. Leigh, Ca. temp. Talb. 54; Forrester v. Leigh, Ambl. 172.) In Sproule v. Prior (8 Sim. 189), the Court directed the assets to be marshalled in favour of a legatee, on account of a vendor's lien for unpaid purchase-money of an estate which descended. But in Wythe v. Henniker (2 My). & K. 635), Sir John Leach, M. R. decided against the right of pecuniary legatees to stand in the place of the vendor upon the land devised. If the real estate be subject to the payment of all debts, a legatee shall stand in the place of a simple contract creditor who has been satisfied out of the personal assets. (Haslewood v. Pope, 3 P. Wms. 323.) Where some legacies are charged on the real estate, a legatee whose legacy is not so charged may stand in the place of the former legatees to be satisfied out of the real assets. (Bonner v. Bonner, 13 Ves. 379.) As between specific devisees and specific legatees, it appears to be now settled that there must be contribution in case of a deficiency of assets. In Long v. Short, 1 P. Wms. 403, one seised in fee of some lands, and possessed by lease for years of other lands, devised the fee to A. and the lease to But Sir L. Shadwell, V. C. in the case of Corne- The Court will not marshal assets in favour of a charitable bequest. (Mogg v. Hodges, 2 Ves. sen. 52; Hobson v. Blackburne, 1 Keen, 273, and many other cases.) leasehold or other perishable property is included REVIEW OF CASES DECIDED IN THE DISTRINGAS. Against Banking Company.-The mode of serving process upon the registered officers of a company, who are, by statute, the parties through whom the shareholders are to be made liable, may be seen from what was held sufficient in Henry v. Mackenzie, 2 New Pract. Cas. 118, to justify a distringas. The affidavit stated that neither of the registered officers could be found; that a number of inquiries had been made at the bank and elsewhere, and that they could not be traced, It has been before shewn who are capable of nor were they known. A rule for a distringas was being legatees, and it will now be necessary shortly granted, with leave to serve it at the place of busito state the different natures of legacies, and after-ness of the company. See also Watson v. Univerwards the mode of payment. sal Salvage Company, 8 Law T. 368. CAP. XIII.-ON LEGACIES. Legacies are of two kinds, specific and general : the distinction is important, as in case of a deficiency of assets a specific legacy will not be liable to abate with the general legacies; and on the other hand, should the specific legacy fail by the ademption or inadequacy of its subject, the legatee cannot claim satisfaction out of the general personal estate. 'Though specific legacies have in some respects the advantage of those that are pecuniary, yet in other respects they are distinguished to their disadvantage from pecuniary legacies." Lord Talbot, in Ashton v Ashton (3 P. Wms. 384). A gift of "my grey horse" will pass a black horse, which is not strictly grey, if it be found to be the testator's intention that it should pass by that description; but if the testator has no horse, the executor is not to buy a grey horse. (Evans v. Tripp, 6 Madd. 92.) If, however, the gift be of "a horse," and the testator has no horse at the time of his death, the executor must procure a horse for the legatee. (Brousden v. Winter, Ambl. 57.) Specific legacies.-A legacy is said to be specific when it is a gift of a specified part of the testator's property, which is so distinguished. There may be a specific legacy of money, if described as in a particular place, or in the hands of a particular person (Lawson v. Stitch, 1 Atk. 508; Crockat v. Crockat, 2 P. Wms. 164; Hinton v. Pinke, 1 P. Wms. 540; Ellis v. Walker, Ambl. 310); of stock, where there is in the bequest a clear reference to a particular fund (Ashburner v. M'Guire, 2 Bro. Ch. Ca. 108; Barton v. Cooke, 5 Ves. 461; Norris v. Harrison, 2 Madd. 279; Kirby v. Potter, 4 Ves. 750; Humphreys v. Humphreys, 2 Cox, 184); and of debts and securities. (Ellis v. Walker, Ambl. 309; Gardner v. Hatton, 6 Sim. 93.) The bequest of a lease for years, or of a rent out of a term of years, is specific. (Long v. Short, 1 P. Wms. 403; Rudstone v. Anderson, 2 Ves. sen. 418; and Hone v. Medcraft, 1 Bro. Ch. Ca. 263.) Requisites of affidavit.-As motions for a distringas often fail from inattention to the requisites of the affidavit, it may be well to refer to the observation of Mr. Justice Maule, in Reeve v. Waterhouse, 8 Law T. 342; 2 New Pract. Cas. 106, that the three most common defects are, the not shewing the attempts to serve the defendant in the county to which the writ is directed (see Pinney v. Richardson, 9 L. T. 102); next, the not bringing the writ before the Court, that they may see it is such a writ as the defendant ought to appear to; and lastly, the not shewing that the defendant has The statement that he not appeared to the writ. has not appeared according to the exigency of the writ is often used; but this is insufficient, for he may have entered an appearance on the ninth day, which would not be according to the exigency of the writ, but yet be a good appearance. EJECTMENT. The case chiefly deserving notice is Doe dem. Pennington v. Barrell, 9 Law T. 124; 2 New Pract. Cas. 181, in which the summary remedy given by 1 & 2 Vict. c. 110, s. 18, was held to be applicable to costs taxed upon the consent rule in ejectment. This point had never before been decided, although an examination of the cases under that Act left the point hardly doubtful. (See 2 Law T. 13.) The words of the statute are, that all decrees and orders of Courts of Equity, and all rules of Courts of Common Law, and all orders of the Lord Chancellor, &c. whereby any sum of money, or any costs, charges, or expenses shall be payable to any person, shall have the effect of judgments in the Superior Courts of Common Law, &c.; and all remedies hereby given to judgment-creditors are in like manner given to persons to whom any moneys or costs, charges or expenses, are by such orders or rules respectively directed to be paid." The Court of Exchequer in Jones v. Williams, 8 M. & W. 349, defined the words " money or costs, or charges and "to mean 66 expenses, money decreed or ordered to be paid, together with the costs, charges, or expenses, to be ascertained in the usual way by the officer of the Court." The Court of Queen's Bench had, in Jones v. Williams, 11 A. & E. 175, said that the money payable by the rule must appear by the rule itself. This too general statement, and the cautious adoption of the other mode of obtaining a rule, in Doe dem. Steer v. Bradley, 1D. N. S. 259, gave rise to the doubt which is now ended by the decision of the Queen's Bench, that upon the ordinary consent rule costs may be taxed, and execution at once issued upon the amount of the Master's allocatur. That the Common Pleas would take the same view is clear, from their refusal to grant a rule for the payment of costs taxed by the Master, The difference between a general and pecuniary on a rule for the costs of the day. (Hogson v. bequest, in a residuary clause, is also of importance, Patterson, 4 M. & G. 333.) The very distinction where the property is given to one for life, with re- there made was adopted by Lord Denman in the mainders over, and comprises leaseholds or other principal case. Tindal, C. J. there said, "The perishable property; for, if the bequest be general, decisions which have taken place on awards stand this property must be converted. This is generally upon a different footing. In those cases it was not a question upon the construction of the particular a necessary consequence of the submission to arbiwords of the will; but in Pickering v. Pickering, (4 Myl. & Cr. 289), where the authorities upon the subject were fully considered, it was held that where Specific bequests may be contained in a residuary clause. "The true test by which to try whether a bequest is or is not specific, is to inquire what would be the result if there had been pecuniary legacies with a deficient fund, or a necessity for sale for payment of debts,-to inquire whether or not, in such a case, the bequest would have been protected in a competition with the claims of pecuniary legatees. A party claiming under a gift of all the property that a testator possessed of a specified kind, would not, I apprehend, be bound to contribute."-Lord Cottenham, in Bethune v. Kennedy (1 Myl. & Cr. 117). tration that any money would become payable. The parties, therefore, were obliged to go to the Court to obtain a rule for payment of the money awarded. As at present advised, I cannot help thinking that, when the condition was complied with by the Master in making his allocatur for a certain sum, the rule became a rule of Court for the payment of that particular sum." Proceedings under 1 Geo. 4, c. 87.-In applicaPleas seem especially inclined to be careful in seeing that matters of form, shall not be frittered away, by allowing laxity of practice. Thus in Doe dem. Royd v. Roe, 9 Law T. 76; 2 New Pract. Cas. 202, a rule tions under this Act for security for costs, and judgment as of the Term, it should be remembered, that the Court will not grant the rule where it is doubtful whether a regular notice to quit has been given. (Doe dem. Martin v. Roe, Law T. 393; 2 New Pract. Cas. 136.) In this case Mr. Baron Rolfe also intimated his opinion that where the assignee of the lessor applies, the assignment should be brought before the Court, that the nature of the title may be seen. Service of declaration.—The Court of Common for judgment against the casual ejector was refused, where, although there had been service on the premises, and the wife of the tenant had afterwards admitted the receipt thereof, it did not affirmatively appear that she had given it to her husband, or, indeed, that she was living with him upon the premises. In Doe dem. Fowler v. Roe, 8 Law T. 321; 2 New Pract. 51, Mr. Justice Erle was actuated by the same principle in stating that, in his opinion, it is no ground for relaxing the rules as to service of the declaration and notice, that the tenant in possession is an attorney. In Doe dem. the Mercers' Company v. Roe, 2 New Pract. Cas. 202, service upon three trustees and directors of the company personally, but not at the premises, was held sufficient. EXECUTION. third volume, classes it as 66 Liability of married woman.-Blackstone, in his among the great privileges of English wives" that they are not liable to be taken in execution when sued with their husbands; and the correctness of his position-at least, if not generally, at any rate in the case of costs of nonsuit-was attempted to be maintained in a very ingenious argument in the case of Newton 7. Boodle, 8 Law T. 364; 2 New Pract. Cas. 208; 16 L. J. 146, Q. B.; but without success. The Court unanimously held that the wife is liable to FRIENDLY SOCIETIES. ment as in case of nonsuit. It is very much to be which stayed proceedings until the condition was One defendant may move for judgment in action of tort.-Hadrick v. Heslop, 9 Law T. 172, decides that in actions of tort as inactions of contract, a defendant may move for judgment in case of nonsuit, although his co-defendant may It was contended that he In Reg. v. Grimshaw, 9 Law T. 22, his Lordship travelled away from the point immediately to be decided, purposely to repeat with emphasis this important principle as to the meetings of the town council for the purpose of appointing or displacing any public officers. GUARANTEE. Continuing or limited. No documents give rise to more frequent disputes than guarantees, because so often drawn by persons unacquainted with legal have suffered judgment by default. Upon such principles and decisions. The new cases, as they be taken in all cases where she is a party to the reoccur, are always therefore to be noted by the praccord. They also agreed with the view taken by the a motion, the other defendant need not in any way titioner, in either branch of the Profession. We Court of Exchequer in Banim v. Jones, 3 D. & L. be a party to the rule. 667, that the practice of discharging a married should have been a party, because in Doe dem. woman at all was not founded upon any legal prin- Dudgeon v. Martin, 13 M. & W. 811, the practice ciple, but at the same time they expressed them-given as to different defendants, a new trial cannot was settled, that where different verdicts have been selves fully satisfied with the correctness of the prac-be obtained without all the defendants being in some tice as founded upon equitable principles, and there mention two in this period deserving attention. Shooster v. Cooper, 8 Law T. 150, is the interpretation of a guarantee in the following form :"I agree to guarantee the due payment of any account of purchase Mr. J. Barton may make of you, not exceeding the total value of 5007. sterling.” fore one not to be disturbed. It will not, however. way parties to the rule. The distinction made by This was held not to be a continuing guarantee, be extended; and upon an application for the discharge of a married woman the affidavits should be very full and distinct as to her not being possessed of any property. In Ferguson v. Clayworth, 6 Q. B. 269, the Court refused to discharge the wife, because it was not distinctly sworn that no property was held for her use by her son, whom she was helping in carrying on a business which had been given up to him by his father upon his covenant to maintain her during her life. the Court was, that the defendant who had allowed and therefore to have been exhausted when the first five hundred pounds' worth had been sent in and paid for. Goldshede v. Swan, 9 Law T. 248, is of more general application. Where the statements of the consideration may be construed either as referring to a past, or to a concurrent or subsequent Act, as, for instance, in consideration of your 66 having this day advanced," then evidence is admissible to shew by the truth of the case what the transaction was, i.e. whether the consideration was executed, and the guarantee therefore bad, or executory, and the guarantee good. After order for security for costs.-If the defendant, after a peremptory undertaking by the plaintiff, obtains an order for security for costs with stay of proceedings, he cannot sign judgment for nonfulfilment of the undertaking, if the security has not been given; for he has elected to tie the plaintiff's hands until a certain advantage is given to himself, and therefore is considered to have waived the The Court of Common Pleas, in a case arising advantage gained by the peremptory undertaking. out of the same transaction, discharged a rule with Perhaps the better course in such a case would costs which had been obtained to strike out the be to obtain an order to rescind the order for name of the wife from a rule calling upon the hus- the security, if it was desirable that the plaintiff band and wife, plaintiffs, to pay costs, upon affida- should be compelled to bring the cause to an vits shewing that the wife had not any separate end. (Gandall v. Mott, 9 Law T. 229.) Laws property. Newton v. Boodle, 9 Law T. 127: 2 New 121, shews that there is not this waiver or v. Bott, 8 Law T. 392; 2 New Pract. Cas. Effect of discharge of one defendant.—Denton suspension of right, where the stay of proceed- of the proceeds, I hereby agree to guarantee to you v. Polhill,, 9 Law T. 125; 2 New Pract. Cas. 184. ings is caused by the intervention of any third party; the proper sale of the said wines, and the payment merely confirms an old-established principle, that The official assignee had, in that case, been joined the release of a defendant from execution is a bar by the creditor's assignee, as plaintiff, without his to any second execution against either himself or consent, and had thereupon obtained an order for any of his co-defendants, and that no agreement stay of proceedings, until an indemnity against will render such ca. sa. effectual. Pract. Cas. 203. of nonsuit. costs had been given; but this was held to be no Stamp.-In Sadler v. Johnson, 9 Law T. 79 ; 16 L. J. 178, Ex. the following guarantee was held to be within the exemption of the Stamp Act, as an agreement relating to goods, wares, or merchandise: Messrs. H. G. of C. sixteen casks of sherry wine, "In consideration of your consigning to my friends and engaging to pay me one per cent. on the amount of the proceeds in due time." It was therefore admissible without being unstamped. LANDLORD AND TENANT. Yearly tenancy.-The following document was held not to create a tenancy necessarily for more than a year, but one which, with conditions that might apply if the tenancy lasted more than a year, might yet be terminated by a notice to quit at the end of the first year. Terms and conditions for letting T. farm, in possession of P. as mortgagee, to N. :-The tenancy to be from year to year from Michaelmas next, at the yearly sum of 557. payable half-yearly, at Lady-day and Michaelmas, except the last half year, which portion of rent shall be paid on or before the 1st of August in that year. The tenant to dress the lands in due course of husbandry, and to allow the landlord or in-coming tenant in the last year to enter on the 1st of May to make fallows and carry out the manure, for which a compensation for rent and taxes, and also for the manure on the premises, shall be allowed. The tenant to be allowed the use of the barns for stacking and threshing the crops of the last year till the 1st of May after the tenancy.-Doe dem. Plumer v. Nainby, 9 Law T. 50. Repair of premises. The simplest of the covenants usually inserted in leases, that by which the tenant engages to keep and deliver up the premises in good repair, has been the subject of a decision in the Court of Exchequer, which important because of its general application, and also because it is, as it seems to us, directly at variance with the decision of the Court of Queen's Bench in Burdett v. Withers, 7 A. & E. 136. In that case after the plaintiff had produced evidence to shew the bad state of the premises at the time of the defendant's quitting, the defendant's counsel proposed to crossexamine" as to the state of the premises when the defendant came in." The judge held this to be irrelevant evidence, and directed the jury to "estimate the damages at the sum it would cost to put the premises into tenantable repair without reference to the state in which the defendant found them." In the principal case the amount of rent was 368. within the limited time; and this duty arises out of the monthly. LIMITATIONS (statute of). It is clear that the banker's character is not that requisitions of the statute: it is implied from them, if not expressed in words. Before the statute passed, no such duty existed, for no continuances need have been entered until the Statute of Limitations was pleaded to the action, and the plaintiff came to reply thereto. Since the statute, the whole object of suing out the writ, indorsing the date, and returning it non est inventus, would be defeated, unless the writ be in due time carried to the office : it would not be unreasonable to expect that the defendant should do this, it being the duty of the attorney, who has the custody of the writ, and who alone can know any thing of the requisitions of the statute. The omission was held to be included in the charge of neglecting "to file," that being part of the meaning of "return," and the verdict of the jury was upheld. The respective duties of the judge and the jury, in actions of this kind, were thus defined by the Court: On the third ground, we think that the question of negligence in not complying with the practice of the court, was a question for the jury, although, like many others that turn on matters of law, it was proper to direct the jury positively as to the premises from which to draw their conclusion; and thus it was the province of the judge to inform the jury for what species or degree of negligence the attorney was properly answerable, and what duty was cast upon him, either by the statute or the practice of the them to draw a reasonable judgment from that which was stated in the evidence of practitioners, whether, in the first place, the attorney had performed his duty, and in the second, in case of non-performance, whether the neglect was of that sort or degree which would be penal or culpable in the sense of sustaining This the Court held to be a misdirection, and of an ordinary debtor, for he is liable to an action court; but having done this, it was right to leave to : granted a new trial, saying "It is very material, "Where a man deposits money in the hands of another, to be kept for his use, the possession of the custodee ought to be deemed the possession of the owner, until an application and refusal, or other denial of the right, for, until then, there is nothing adverse; and I conceive that, upon principle, no action should be allowed in these cases without a previous demand; consequently, that no limitation should be computed further back than such demand." or not sustaining an action. Amendment to save the Statute.-In Christie v. Bell, 9 Law T. 70; 16 L. J. 179, Ex. the Court have again upheld the practice of allowing amendments of writs to save the Statute of Limitations, although Pollock, C.B. concurred with what other judges have said, that, if res integra, the amend ment ought not to be allowed. It is hopeless, E. W. however, now to contest the point. (To be continued.) COUNTY COURTS. Two cases of special interest have arisen this week in the County Courts, which will be found fully reported below. The first case, Heron This deserves great weight, but the question may v. Bateson, raises the question of liability of an not arise again for a long time. Hunter. Caldwell, 9 Law T. 73; 2 New Pract. Court. Alias and pluries writs to avoid the statute.attorney, appearing as advocate, for fees of the The learned Judge, though he plainly at this moment without being able to refer to that case, but it does seem strange that, as the covenant might Cas. 160; 16 L. J. 274, has, we presume, finally signified his opinion, it will be seen, hesitated so easily be made, "to put, keep, and deliver up in set at rest the doubts as to the forms requisite to be to rule that the attorney must pay the fee repair," the omission of the word put should have observed in the issuing the alias and pluries writs demanded. Some remarks on this point we no operation upon the legal effect of the covenant. under 2 Wm. 4, c. 39, s. 10, and also the duty of have appended to the case by way of note. It The other case, Gardner v. T- , gent. one, Moreover, it is somewhat difficult to see any other the attorney who is engaged for this purpose. object for considering the age of a house than to was an action against an attorney for negligence &c. is important, insomuch as it discusses the calculate the state of repair it was in at the time of because he had not " duly filed" the writs neces- point whether an attorney may claim the prithe demise. Mr. Baron Alderson observed, that it sary to keep alive the debt, and the evidence was vilege of being sued in a Superior Court to is a rule very difficult of application; in which remark that on two occasions he had neglected to take the which he belongs. Here the learned Judge all will concur; and we hope, therefore, that the next writs to the treasury of the court at the expiration took advantage of the circumstance that he The fol- was not called upon to deliver judgment on time it will not be so very summarily disposed of, of the five months limited by the statute. as, according to the report, it appears it was, in the lowing extract from the judgment delivered by the point; but stated that he was inclined to case upon which we have been commenting. We Lord Denman, C.J. will put the matter quite clear. think that attorneys were entitled to that prihave thus noted the different views of the two The statute provides that no fresh writ shall be vilege, notwithstanding several of the Judges Courts, that our readers may be guided as to the available to prevent the operation of the Statute of of the new courts had held to the contrary. Court in which actions against tenants for non-limitations, and keep alive the action, unless that repair should be brought, for the ruling of the very writ, if it is in continuation of a preceding writ, be returned non est inventus, and entered of record The reports of the proceedings of the County Exchequer is much more to the benefit of the land- within one calendar month next after the expiration Courts, published here and in the COUNTY COURTS thereof, including the day of such expiration; and Lease or agreement-7 & 8 Vict. c. 76, s. 4.- unless every writ issued in continuation of the CHRONICLE, do not afford the slightest measure of Burton v. Revell, 8 Law T. 367; 16 L. J. 85, Ex.; preceding writ shall be issued within one calendar the multitude of delicate and difficult questions of 2 New Pract. Cas. 80, is the only decision that we month next after the expiration of the preced- law that daily arise there, and upon which the are aware of upon the short-lived statute 7 & 8 ing writ, and shall contain a memorandum in- Judges are required to pronounce an opinion ex Vict, 76. which required all leases to be by deed. dorsed thereon or subscribed thereto, specifying the cathedra, while from that judgment, if erroneous, Although repealed, its provisions remain as legal day of the date of the first writ and return [this word there is no appeal. We report only the decisions mines to spring upon the unwary, with respect to probably should have been "such" instead of "and"] upon the practice of the Courts, in which they are to be made, in bailable process, by the sheriff or a law to themselves, and for which there is no bettransactions between January 1 and October 1, other officer to whom the writ shall be directed, or ter or higher authority. Points of general law we 1845, and must therefore be added to the stock of his successor in office, and in process not bailable, by do not report, because for these a County Courts lumber that our statute-framers delight in heaping the plaintiff or his attorney suing out the same, as up, year after year. That case decides that the the case may be." Two things are in terms required decision is not citable, and the Superior Courts are prohibition applies to all leases in writing, not by the statute to be performed in a limited time: the the only authorities. But the number, variety, and merely to all leases required by law to be in writ- returning the writ non est inventus, and entering it of perplexity of the questions of law that are contiing, which are the words used in 9 & 10 Vict. c. record, the former of which, when the party is bail-nually starting up in the County Courts, involving 106, and that, consequently, a document which, able, is to be done by the plaintiff's attorney; the almost every branch of legal learning, not only sugbut for that statute, would have amounted to a latter, beyond all question, must be done by the gest the importance of exercising the utmost care in officer of the court; but as this officer's duty is the future appointment of the Judges, as demandlease, and therefore have needed a stamp, may be limited to the entering of such writs of record as are given in evidence without being stamped, and for brought to him, a duty clearly arises on the attorney ing in them a higher standard of ability, but the the very purpose of shewing the amount of rent, if who sues out a writ and returns it non est inventus, fact is another proof of the necessity for encouragthe value of the document does not exceed 201. that is, to bring the writ to him for that purpose ing a large and regular attendance of professional lord. |