pared at present to answer the question. The subject of the law of settlement was now under the consideration of a select committee, and he would rather reserve the expression of any opinion until that committee had presented their report to the House.-Mr. R. YORKE said that if the House did not receive any information on the subject soon after the Easter recess, he should feel it his duty to move for leave to bring in a Bill to repeal the Poor Removal Act.

SECOND REPORT OF THE SELECT COMMITTEE
ON PRIVATE BILLS.

On Monday the select committee appointed "to continue
the inquiry into the private business of the House, the ex-
penses attending the obtaining of all private Bills, including
all the expenses of the opponents as well as the promoters of
Bills, and the taxing of expenses relating thereto," consist-
ing of Mr. Hume, Lord Granville Somerset, Sir George
Grey, Sir James Graham, Mr. Strutt, Mr. Cardwell, Mr.
Greene, Mr. Gibson Craig, Sir William Clay, Sir William
Heathcote, Mr. Estcourt, Mr. Loch, Mr. Home Drummond,
Captain Jones, and Lord Courtenay, issued their Second
Report.
The committee have, it appears, made considerable pro-
gress in their inquiries; and having obtained full informa-
tion on the subject of fees paid to the House, on the taxation
of costs, and the formation of committees on private Bills,
report upon these points as follows, reserving the other sub-
jects of their inquiries for future communication.

FEES OF THE HOUSE.-It appears that the fees consist of a great variety of small items charged on every stage of the proceedings on private Bills. These fees are so complicated as not to be easily understood either by the clerk who has to collect them or by the parties who have to pay them.

Since of late years all the officers of the House have been

may

alter such directions, and to enlarge the time originally
directed, or, under special circumstances, altogether to relieve
the agent or solictor from the operation of the rule, if he shall
Speaker, the original direction shall be conclusive, and the
see fit to do so; and that, subject to such discretion of Mr.
agent or solicitor failing to comply with the same shall have
no power of recovering his charge against the party.
Your committee is further of the opinion that the costs
and expenses attendant upon bills promoted or opposed by
corporations and public bodies, however constituted, in trust
for and on behalf of the public, should in all cases be taxed.
Your committee therefore have requested their chairman
to ask leave of the house to bring in a Bill to carry those pur-
poses into effect.

FORMATION OF COMMITTEES ON PRIVATE BILLS.
Your committee having taken evidence as to the present
working of committees of railway bills, and finding a
general approval of their efficiency, are of opinion that all
committees upon opposed private bills should be appointed
and constituted in the same manner as committees upon
railway bills.
Your committee having had before them the bill intituled
"A Bill for consolidating in one Act certain provisions
usually contained in Acts for paving, draining, cleansing,
lighting, and improving towns," referred to them by the
House, are of opinion that the measure is not of a character
to be satisfactorily considered by them, and they have there-
fore requested the chairman to submit to the House whether
the order of reference may not be discharged.

THE MAGISTRATE.

Summary.

A

AN incident of the week claims notice. remunerated by fixed salaries, and all fees have been carried society has been recently formed upon the plan to the credit of commissioners appointed by Act of Parliament to receive them, there are now no persons individually of the Association for the Prosecution of Felons, interested, as formerly there were, in the number or amount which have existed for many years in various of these fees. The House, therefore, is perfectly at liberty parts of the country, but introducing some to make any alterations regarding them which it think fit. improvements, the most prominent of which tion of Mr. Speaker, and by his desire Mr. Dorington, the This subject has been for some time under the considera is a species of insurance against loss by robclerk of the fees, has laid before the committee a table of fees bery, which is included in the subscription. constructed upon a different principle, by which it is con- To the principle of such a society no reasontemplated to abolish the present system of charging a great able objection can be offered; but one of its many small fees on the various proceedings of a Bill, and to substitute a few larger fees, to be charged on the principal propositions has produced an indignant article stages, viz. one fee on presenting the petition for a Bill, one in The Times, which, although referring to the on going into the committee on the Bill, one for each day in committee, and one on each of the readings of the Bill, with particular case, really raises the entire question other minor alterations and regulations; and these sugges- as to the conduct of prosecutions by magistions have received the decided approbation of your com-trates' clerks, on which opinions are so conYour committee have also called for an estimate of the flicting both within and without the Profees to be collected under the proposed new scheme, and of the income likely to arise from such fees, calculated for an amount of business annually equal to that of the year 1814. Your committee recommend that the fees be fixed on such

mittee.

as may be.

a scale as, with the assumed amount of business, to produce as nearly as possible the amount received in ordinary years. requested to cause to be prepared a table of fees based on They therefore submit to the House, that Mr. Speaker be the principles above stated, with a view to such table being adopted by the House, and brought into operation, either from the commencement of the present session, or as soon TAXATION OF COSTS.-In the last session of Parliament the Select Committee on Private Bills reported to the House their opinion, "that although the fees payable to Parliament on local and private Bills are fixed and known, yet the charges of solicitors and agents for promoting or opposing such Bills are very uncertain, and often very extravagant; and as there is no scale established by Parliament for such charges, it is desirable, for the protection of the public, that a proper taxing officer, such as is attached to courts of justice, should be appointed under the authority of the Speaker, and a scale of taxation be authorised and published by him, for the guidance of all parties promoting or opposing local and private Bills."

Your committee have taken further evidence upon the subject, and are satisfied that no time should be lost in establishing an efficient taxation of parliamentary costs and charges in accordance with the opinion above expressed. In order to effect this object, it will be necessary to pass an Act in the present session enabling Mr. Speaker to appoint a taxing officer or officers, who shall have all the powers pos. sessed by the taxing masters of the Court of Chancery, and shall examine and tax, as well all preliminary expenses incident to applying to Parliament for private bills, as all charges for soliciting or opposing the same.

Your committee are of opinion that the fee to be charged upon the taxation of costs should be as moderate as shall be compatible with the due performance of the duty; and further, that every facility should be afforded both to the promoters and to the opponents of private bills, or parties liable to pay such costs, for obtaining the relief which such taxation will afford.

In accordance with this view, your committee think that the parties who have been engaged either in promoting or opposing any private Bill, and who object to the charges of solicitors or agents, should be at liberty within six months from the termination of the session of Parliament in which such Bill may have passed, or within six months next after the bills of such solicitors or agents shall have been delivered to the parties, to apply in writing to Mr. Speaker, who shall then give the requisite orders for the taxation of such charges.

respects to the most serious abuses in the administration of the criminal law.

At the end of the prospectus is the following note, in italics :-"Solicitors of the greatest respectability, the majority of them being justices' clerks, have accepted the agencies of the society, in most of the principal towns and magisterial districts throughout the country." bounden duty it is to act as the impartial legal adIn other words, the men whose visers of the magistrates-who ought, if possible, to come to the performance of that duty without the slightest bias for or against the accused-on whose freedom from the suspicion of being actuated by any interested motives depends much of the respect which ought to be secured to the administration of the law by the justices of the peace-and who often are virtually the administrators of magisterial law—the ma and magisterial districts throughout the country, bave jority of these men, in most of the principal towns accepted a retainer from this society against every person who shall be charged with theft by the scciety, or any one of its subscribers. Here is a society, with a capital of 150,000l. "completely registered, with a Queen's counsel, a serjeant-at-law, and a barrister-at-law for its trustees, with a serjeant-atlaw holding an important municipal office among its directors, which not only commences its career by directly bribing a majority of the magistrates' clerks throughout the country, but unblushingly avows the fact in the most prominent manner in a prospectus which it distributes throughout the kingdom!

We know not whether the judges of the courts of common law would consider the acceptance by a maground for removing him from the roll of attorneys; gistrate's clerk of the society's agency a sufficient but if not, there can be little doubt that it ought to be made a cause for such removal. An attorney cannot, while on the roll, be a magistrate, because his professional and his judicial duties and interests would case of a magistrate's clerk. It is his duty to draw be conflicting; and the same reason applies to the up the depositions on which the committal is grounded with the most absolute impartiality; and when this is done, the judge before whom the trial of the prisoner takes place has an important check on the edly exposed the enormity of letting off prisoners on evidence which is given before him. We have repeatmere technicalities, but it is a rare thing to have to make any objection to the acquittal of a prisoner when directed by a judge on the score of the evidence being insufficient to satisfy him of the prisoner's guilt. As the subject is of great practical import-it has not yet entered on its business of prosecuting When the society is in operation-for we trust that ance, and will doubtless give rise to much "offenders by theft"—what chance will a poor man controversy, it may be convenient to our whom any of the subscribers chooses to accuse of premising that we cannot discover the slightest against the loss he has sustained, unless he has readers to present this article entire, merely robbing him have of a fair trial? The prosecutor will be indemnified by the society objection to an association for mutual protec-failed to use due diligence to detect the offender and tion against robbery, and insurance against bring him to justice;" so that he will have a direct the losses resulting from it. The only point pecuniary inducement to take care that there shall be at all open to question is that against which no want of evidence sufficient to procure a committal, The Times has hurled its thunder. and we know too well what sort of evidence can be procured from some police officers to serve any given jury to begin with. purpose. Here is a premium for subornation of per.

fession.

bring the subject of the further improvement of the
Lord Brougham has given notice of his intention to
criminal law under the notice of Parliament early in
the course of the present session, and has intimated
that he intends to do so in such a manner as to pro-
duce great effect. That we shall have a magnificent
oration, touching incidentally on all possible subjects
the wide topic of criminal law his lordship will talk
of domestic and foreign policy, we cannot doubt. On
discursively; he will lay down grand general princi-
ples, peculiarly applicable to some abstract ideas of
human nature, but not precisely qualified to guide the
Legislature on points of detail; and he will not for-
get to eulogize his past exertions. If he can lay hold
on a new abuse, it will be a fortunate circumstance
for himself, his auditory, and our readers; for there
is no one better able to worry a resistless delinquent
than the sarcastic Ex-chancellor; and the joyousness
of a boar hunt, in which it seems he does not indulge,
is nothing to the glee with which he ferrets out the
pettifogger, and shakes him to death.

Although Lord Brougham of course knows everything that takes place in and out of England, still it is possible that he may occasionally remember some things with less distinctness than others, and therefore we take the liberty of reminding him that a society has lately been completely registered," and thus legally invested with the character and privileges of a corporation, of which it behoves all those who feel any interest in the improvement of the law to take immediate notice. Its name is the Property ProtecYou committee also think that the parties should have tion Society. Its avowed objects are the more effipower to obtain from their agents and solicitors the delivery cient prosecution of "offenders by theft" (generally of their bills of charges within a reasonable time; they recalled thieves), the rendering of prosecutions more commend, therefore, that at the expiration of six months from systematic and effectual, and the insurance of its subthe close of any session of Parliament, it should be open to scribers against losses by theft. In short, it is a jointany party who has not received the bill of charges to be stock-public-prosecutor-for-private-advantages comclaimed from him for service in respect of any private business in that session, or of proceedings preliminary such a company might have its advantages; but, acpany. Under sufficient safeguards against abuse, thereto, to apply to Mr. Speaker; that Mr. Speaker should have power to give such directions as he may think fit with respect to the time within which such bill shall be delivered; that Mr. Speaker should have power from time to time to

cording to the prospectus of this society, we enter.
tain serious apprehensions that it may become an en-
gine of vast oppression to the poor, and lead in many

will have as direct an inducement to procure evidence The justice's clerk, being the agent of the society, for the prosecution; to place every obstacle in the way of evidence being found for the defence; to throw discredit on it if tendered; to bias the magistrate as to insure a conviction, instead of taking them against the accused; to draw up the depositions so down fairly; and to use every other trick to pervert the course of justice-because "the society will superintend, at its own cost, by its own attorneys or agents, the prosecution of all offenders by theft against the property of its subscribers."

We do not say that justices' clerks will yield to these temptations, but we do say that they must not place themselves in a position in which it will be so evident to all that their duties and their interests conflict as to render them and the magisterial bench the objects of grave suspicion.

The statement which we have quoted from the prospectus might, perhaps, be considered as a mere puff, were it not that the clerks to the justices of the Bath division of the county of Somerset are actually advertised as joint solicitors to the society. We are curious to know whether the society have applied to the chief clerks at the London police-offices to accept the agencies. That greater facilities are required for the detection and punishment of offenders, few will doubt; but that this society are making a monstrous attempt to get a dividend on 150,000l. by what is virtually poisoning the fountain of justice, no one can have the hardihood to deny.

TITHE COMMUTATION AVERAGES. SIR,-As it may be interesting to your readers, I inconsistency which, without investigation, seems to transmit the following explanation of the apparent exist between the average prices of wheat, barley, and oats, for seven years previous to Christmas 1835 (on the basis of which averages the Tithe Commutation

APRIL 3.]

was arranged), and the average prices for seven years comprising from twenty to thirty parishes. With so to Christmas last.

AVERAGE PRICES FOR SEVEN YEARS.

To Christmas, 1835. To Christmas, 1846. s. d. 8. d. Wheat, per imperial bushel 7 01 Barley Oats

311
29

13 82

7903

4 0

2 83

13 9

It may be as well to remind your readers that the 57th clause of the Tithe Commutation Act (6 & 7 Wm. 4, c. 71) directs that the amount of rent-charge shall be divided into three portions, and that every rent-charge be deemed to be of the value of such number of imperial bushels, and decimal parts of an imperial bushel of wheat, barley, and oats, as the same would have purchased at the average prices for seven years, ending Thursday before Christmas day, 1835; in case one-third part of such rent-charge had been invested in the purchase of wheat; one-third part thereof in the purchase of barley, and the remaining one-third part thereof in the purchase of In conformity with the above we find that 1007. expended in wheat, barley, and oats, would purchase the following quantities, viz. :— Imp. bush. 94,955,489 168,421,052

oats.

One-third, or 331. 6s. 8d. in wheat, at 7s. old.
per imperial bushel, is equivalent to...
One-third, or 331. 6s. 8d. in barley, at 3s. 114d.
per imperial bushel, is equivalent to..
One-third, or 331. 6s. 8d. in oats, at 2s. 9d. per
imperial bushel, is equivalent to....

242,424,242

It is therefore evident that the rent-charge cannot be considered a money payment of 1001. but only such a sum as the above quantity of wheat, barley, and oats are equivalent to according to the average prices for seven years to the preceding Christmas.

The average prices for seven years to Christinas last, as published in the London Gazette of the 1st of January, 1847, were as follows: 8. d.

Wheat..
Barley.

Oats.

70 per imperial bushel.

4 0

2 81

ditto.
ditto.

It is not alone sufficient to compare the average prices, but also to value the number of bushels of each sort of grain as determined under the 57th clause, as follows:

Imp. bushel.

94,955,489 of Wheat at 78. 04. 168,421,052 of Barley at 4s.

242,424,242 of Oats at 2s. 8d..

33

33 13 8

large a field open, labourers would settle naturally,
according to the requirements of their work; and the
whole advantage of their labour would be shared by
all parties. To meet the increasing wants of a popu-
lation yearly augmenting to the extent of 230,000,
agriculture ought to be followed more skilfully. Im-
provements in draining and manuring, with the in-
creased use of machinery, and better-paid labourers,
would make the land far more productive. As it is,
English labour, comparatively high-priced, is far
cheaper than the labour of any other country. The
yield of English land is seldom less than twelve-fold;
in France it is not more than five-fold; in Poland and
Russia, not more than three-fold. Several other
gentlemen spoke. Mr. Wood mentioned a circum-
stance in corroboration of Mr. Chadwick's view.
About two years ago Mr. Wood forbade a tenant of
his, a tailor, from taking as an apprentice a young
man residing in an neighbouring parish; the youth,
who was lame, thus lost an opportunity of gaining an
honest livelihood, entirely owing to the present ob-
jectionable restrictions. Long and argumentative
resolutions were adopted, embodying the views pro-
pounded by Mr. Chadwick and the other speakers;
and concluding with an emphatic declaration that the
law of parochial settlement should be immediately and
wholly abolished, and relief administered in districts
so large as not to restrict the free action of the agri-
cultural labour-market.

chance of committing a fraud, and when that fraud is detected, recover on the instrument as it was originally made." In such a case the law intervenes and says, "That the deed thus altered no longer continues the same deed, and that no person can maintain an action upon it." In reading that and the other cases cited, I observe that it is nowhere said that the deed is void merely because it is the case of a deed, but because it is not the same deed. A deed is nothing more than an instrument or agreement under seal, and the principle of these cases is, that any alteration in a material part of any instrument or agreement avoids it, because it thereby ceases to be the same instrument; and this principle is founded on great good sense, because it tends to prevent the party in whose favour it is made from attempting to make any alteration in it. This principle, too, appears to me as applicable to one kind of instruments as to another, but it has been contended that there is a difference between an alteration of bills of exchange and deeds, but I think that the reason of the rule affects the former Supposing a more strongly, and the alteration of them should be more penal than in the latter case. bill of exchange were drawn for 1001. and after was altered to 1,000l.; it is acceptance the sum not pretended that the acceptor shall be liable to pay the 1,000.; and I say that he cannot be compelled to pay the 1007. according to his acceptance of the bill, because it is not the same bill. So, if the name of the payee had been altered, it would not have continued the same bill, and the alteration in every respect prevents the instruments continuing the same, as well when applied to a bill as to a deed. It was said that Piggott's case only shews to what time the issue relates; but it goes further, and shews that if the instrument be altered at any time before plea It is true the Court will inquire to what time the issue relates in both cases. Then, to what time does the issue relate here? The plaintiffs in this case undertook to prove every thing that would support the assumpsit in law, It was GROSE, J.-The only question in this case is, otherwise the assumpsit did not arise. whether there appears on the face of this special incumbent on them to prove that, before the d. verdict a right of action in the plaintiffs on any of action was brought, this identical bill, which was 87 the counts. The first count is on a bill of exchange, produced in evidence to the jury, was accepted 32 16 63 dated the 20th of March; but there being no proof by the defendant and refused; but if the bill of any bill of that date, there is clearly an end of which was accepted by the defendant were altered that count. The second is on a bill dated the 26th before it was presented for payment, then that of March; but the defendant objects to the plaintiffs identical bill which was accepted by the defendant recovering on this count also; because the bill hav- was not presented for payment; the defendant's ing been altered while it was in the hands of Wil- refusal was a refusal to pay another instrument, kinson and Cooke, it is not the same bill as that and therefore the plaintiffs failed in proving a neIf the bill which was accepted, and that is the true and only cessary averment in their declaration. question in the cause. My idea is, that the plaintiffs' had been presented, and refused payment, and it right of action, as stated in this count, cannot be had been altered after the action was brought, then maintained at common law, but is supported only it might have been like the case mentioned at the on the custom of merchants, which permits these bar. It was contended at the bar that the inquiry ABOLITION OF THE LAW OF SETTLEMENT.A special meeting of the Farmers' Club was held on particular choses in action to be transferred from before a jury in an action like the present should Monday, in Bridge Street, Blackfriars, to consider one person to another. The plaintiffs, as indorsees, be whether or not the defendant promised to pay the subject of the Poor-law Settlement, Mr. Fisher in order to recover on this bill, must prove the ac- the bill at the time of his acceptance. But, Hobbs in the chair. Mr. Edwin Chadwick attended, ceptance by the defendant, the indorsement from granting that he did so promise, that alone and delivered an elaborate exposition of the evils of Wilkinson, and Cooke to them, and that this was will not make him liable, unless that same bill were the law of settlement. The following brief indica- the bill which was presented when it became due. afterwards presented to him. I will not repeat the tions will shew the line of his argument:-He traced Now, has all this been proved? The bill was drawn observations which have been already made by my the injurious effects of the present system in the overcrowding of localities in the neighbourhood of on the 26th of March, payable at three months' lord on the case in Molloy; but the note of that towns, which led to the generation of fever. The date; the defendant's engagement, by his accept-case is a very short one, and the principle of it is agricultural labourers are driven to this injurious ance, was, that it should be paid when it became not set forth in any other book, nor, indeed, do the congregation by the pulling down of cottages in order due, according to that date; but afterwards the facts of it sufficiently appear. I doubt, also, whea ther it was a determination of this Court: it only to avoid parochial settlements and their liabilities. date was altered. The date, I consider, as But the policy is a shortsighted one, and results in very material part of the bill, and by the alter- appears that there was a point made at Nisi Prius, loss to all parties. On the labourer, in particular, it ation the time of payment is accelerated several but not that it was afterwards argued here. But it entails the evil of living far from his work. This days. According to that alteration the payment has been said, that a decision in favour of the plainleads to waste of power and loss of wages, through was demanded on the 23rd of June, which tiffs will be the most convenient one for the comthe necessity of paying higher rent, and missing the shews that the plaintiffs considered it as a bill mercial world; but that is much to be doubted; natural employment of the children. As an illustration, Mr. Chadwick mentioned the case of Stephen drawn the 20th of March; then the bill which was for if, after an alteration of this kind, it be compeTurner, a Berkshire labourer, who, from being forced produced in evidence to the jury was not the same tent to the Court to inquire into the original date of to live near Reading, had to walk seven miles a day bill which was drawn by Peel and Co. and accepted the instrument, it will also be competent to inquire to and from his work. He thus expended in wasted by the defendant; and here the cases which were into the original sum, and original payee, after they labour two hours and a half daily. If he had resided cited at the bar apply. Piggott's (11 Co. 27) is had been altered, which would create much confuGreat and mison the spot, the two hours and a half would have the leading case; from that I collect that when a sion, and open a door to fraud. been engaged in productive work, by which he would deed is erased whereby it becomes void, the obligor have gained an extra 2s. 6d. a week. There are instances of labourers walking as much as twelve miles may plead non est factum, and give the matter in evidence, because at the time of plea pleaded it was a day, or seventy-two miles a week. In the long run, the tenant-farmer and the owner participate in not his deed; and, secondly, that when a deed is this loss. It is ascertained that high wages make altered in a material point by himself, or even by a men work better. Mr. Chadwick illustrated this stranger, the deed thereby becomes void. Now the by reference to a farm in Essex, on which the owner effect of that determination is, that a material alteraworking the land with common parish labour at tion in a deed causes it no longer to be the same 1s. 6d. a day lost money; whereas an able farmer deed. Such is the law respecting deeds; but it is now works it with free labour at 2s. 6d. or said that that law does not extend to the case of a 3s. 6d. a day, task-work, and makes it pay well. It bill of exchange. Whether it do or not must is important that there should be a free and unrestricted circulation of labour. To this end, it is depend on the principle on which this law is necessary to abolish the law of settlement, by extend- founded. The policy of the law has been already ing the chargeability from the parishes to unions, stated, namely, that a man shall not take the

chievous neglects have already crept into these
transactions, and I conceive that keeping a strict
hand over the holders of bills of exchange, to pre-
vent any attempts to alter them, may be attended
with many good effects, and cannot be produc-
tive of any bad consequences, because the party
who has paid a value for the bill may have
to the person who immediately re-
recourse
On these grounds, therefore,
ceived it from him.
I am of opinion that the plaintiffs cannot recover
Neither do I think that they
on the second count.
can recover on the general counts, because it is not
stated as a fact in the verdict that the defendant re-
ceived the money, the value of the bill.

notes, where the broker, for some purposes, is the
agent of both parties, and this decision was upheld
in Davison v. Brassington, 12 Law J. 467, Exch.
How far the unauthorised alteration of a written
security affects the rights of the parties in other
respects, see ante, note.

in case any incumbent happen to die, and before his death hath caused any of his glebe lands to be manured and sown at his proper costs and charges with any corn or grain, then in such case every such incumbent may make and declare his testament of all the profits of the corn growing upon the said glebe lands so manured and sown.

The case which has been just concluded was selected as the most comprehensive illustration of the Heir-looms.- Heir-looms are such goods and existing state of the law relating to the negotiability personal chattels as, contrary to the nature of chatof bills of exchange, and the present effect of the an- tels, shall go by special custom to the heir along cient common law, affecting choses in action. The with the inheritance, and not to the executor of the main question, we have seen, was, how far the alter- last proprietor. The termination loom is of Saxon ation of a bill, after it has been once issued, affects original, in which language it signifies a limb or its validity and subsequent negotiability. We have member; so that an heir-loom is nothing else but a taken the opportunity to observe, by way of notes to limb or member of the inheritance. They are the opinions of the various judges as they were deli- generally such things as cannot be taken away vered, the extent to which the doctrines there laid without damaging or dismembering the freehold. down have been since carried, in invalidating not Charters and deeds, court rolls and other evidences only the security, but the debt secured by a nego- of the land, together with the chests in which they tiable instrument (see Alderson v. Langdale, 3 B. are contained, will pass, together with the land, to & Ad. 660; and Atkinson v. Hawdon, 2 Ad. & E. the heir in the nature of heir-looms, and will not go 269, commented upon ante, in notes), is altered, and to the executor. By special custom also in some it has been shewn that, in the peculiar case of a bill places carriages, utensils, and other household imof exchange or promissory note, the stamp laws in-plements may be heir-looms; but such custom terfere to prevent their being altered, even with the must be strictly proved. Other personal chattels consent of all parties after having once regularly there are which also descend to the heir in the issued. (Bowman v. Nicholl, 5 T. R. 537.) nature of heir-looms, as a monument or tombstone in a church, or the coat-armour of his ancestor there hung up, with the pennons and other ensigns of honour suited to his degree. In this case, albeit the freehold of the church is in the parson, and these are annexed to that freehold, yet cannot the parson or any other take them away or deface them, but is liable to an action from the heir. Pews in the church are somewhat of the same nature, which may descend by custom immemorial (without any ecclesiastical concurrence) from the ancestor to the heir. But though the heir has a property in the monuments and escutcheons of his ancestors, he has none in their bodies or ashes; nor can he bring any civil action against such as indecently, if not impiously, violate and disturb their remains when dead and buried.

By the COURT.-Judgment for the defendant. From this decision the plaintiffs appealed to the Exchequer Chamber, when the case was argued by Wood for the plaintiff, and Bearcroft for the defendant. The plaintiffs' counsel, as may be imagined, relied chiefly on the points urged in Mr. Justice Buller's elaborate (but, as it was held in this case, erroneous) judgment; and also on the form of the issue, which, according to the then form of pleading to bills, was non assumpsit,(a) and consequently could not be supported by the fact of the alteration subsequent to the acceptance; 'further cases were also cited on the effect of alteration in the case of deeds. (Nicols v. Hayward, Dyer, 59; Michael v. Stockwith, Cro. Eliz. 120; Dr. Zeyfiell's case, 10 Co. 92; Read v. Brookman, 3 T. R. 151.) The Court, however, unanimously affirmed the judgment of the majority of the judges of the court below, with the following concise observations :EYRE, C.J.-I cannot bring myself to entertain any doubt on this case; and if the rest of the Court are of the same opinion, it is needless to put the parties to the delay and expense of a second argument. When it is admitted that the alteration of a deed would vitiate it, the point seems to me to be concluded; for by the custom of merchants a duty arises on bills of exchange from the operation of law, (b) in the same manner as a duty is created. The doctrines of law laid down, however, in On a deed by the act of the parties, with respect to Masters v. Miller, are by no means of such conthe argument from the negotiability of bills of ex-fined operation as to affect only bills of exchange change, and their passing through a variety of hands, the inference is directly the reverse of that which was drawn by the counsel for the plaintiff; there are no witnesses to a bill of exchange as there are to a deed; a bill is more easily altered than a deed; if therefore courts of justice were not to insist on bills being strictly and faithfully kept, alterations in them highly dangerous might take place, such as the addition of a cypher in a bill for 1007. by which the sum might be changed to 1,000. and the holder having failed in attempting to recover the 1,000. might afterwards take his chance of recovering the 1007. as the bill originally stood. But such a proceeding would be intolerable. It was said in the argument that the defendant could not dispute the finding of the jury, that they had found that he accepted the bill, and therefore that the substance of the issue was proved against him. But the meaning of the plea of non assumpsit is not that he did not accept the bill, but that there was no duty binding on him at the time of plea pleaded. (See Sullivan v. Montague, 1 Douglas, 111,112, and notes). There are many ways by which the obligation of the acceptance might be discharged; for instance, by payment. And it was certainly competent to him to shew, that the duty which arises prima facie from the acceptance of a bill, was discharged in the present case by the bill itself being vitiated by the alteration which was made.

MACDONALD, C.B.-I see no distinction as to the point in question between deeds and bills of exchange; and I entirely concur with my Lord Chief Justice, in thinking there would be more dangerous consequences follow, from permitting

alterations to be made on bills than on deeds.

The other judges declared themselves of the same opinion. Judgment affirmed.

The effect of this decision has been to render invalid all bills or notes on which any material alteration has been made unauthorized by the parties liable. (See Tidmarsh v. Grover, 1 Maule & Selwyn, 735; Marson v. Pettit, 1 Campbl. 82, note.) What is a material alteration is often a subject of discussion. (See Calvert v. Baker, 4 M. and W. 417; Davison v. Brassington, 12 Law J. (Exch.) 467; and Hemings v. Trenerey, 9 Ad. & E. 926.) The stamp laws, as we have seen, render a bill or note which has been authorized, after being once issued void, if altered in a material point, even with the consent of the party liable. (See ante, note.)

The doctrine of written instruments being avoided by unauthorised alteration after execution was extended in Powell v. Divett, 15 East, 29, to brokers'

(a) The reader will see that this argument could not now arise, as the defendant would have been compelled to traverse the acceptance of the bill, according to the new rules of pleading.

(b) The old form of declaration on a bill of exchange was, that A B" according to the usage and custom of merchants made his bill of exchange," or after stating the making and acceptance, proceeded to state that the defendant, by reason thereof, according to the custom of merchants, became liable to pay, &c. See Ereskine v. Murray, 2 Lord Raym. 1542.

and promissory notes. The judgment of Mr. Jus-
tice Buller, though overruled upon the main ques-
tion at issue, contains a mass of valuable dicta on
the subject generally of choses in action, which
peculiarly affect our system of mercantile law, and
are equally applicable to other negotiable securities
as to bills of exchange, as we shall see when we come
to discuss the case of Lickbarrow v. Mason, and
other leading authorities on this branch of the lex
mercatoria.

Since the new rules of pleading of Hil. T. 4 Wm.
4, which abolished the plea of non assumpsit alto-
gether in actions on bills of exchange and pro-
missory notes, it has been held that under a plea
that the defendant did not accept the bill on which
the plaintiff declared the evidence might be given of
the bill having been altered since the acceptance.
(Cox v. Coxwell, 4 Dowl. 187; 1 Eale, 177.

THE PRACTICE OF WILLS.
By G. S. ALLNUTT, Esq. Barrister-at-Law.

BOOK IV.

ON WINDING UP THE ESTATE.

CHAP. III.-ON CHATTELS PERSONAL.

(Continued from Vol. 8, page 565.)
Vegetable.-Vegetable productions (as the fruit
or other parts of a plant), when severed from the
body of it, or the whole plant itself when severed
from the ground, are considered as personal effects,
and the executor or administrator will be entitled
to them. But if the fruit or plants have not been
severed, they go to the heir. (Com. Dig. Biens,
H.)

If the owner of the soil grant his trees, they are
considered as severed, and will pass to the grantee
and his executors, although the grantee should die
before the trees are actually severed. (Com. Dig.
Biens, H.) If a tenant in tail grant trees and
die before severance, the grantee cannot take them.
(11 Co. 50, a).

Emblements.-Where the possessor of land has sown or planted it, the corn growing on the ground or other emblements will pass to the executor, and not to the heir. This rule extends not only to corn sown, but to roots planted, or other annual artificial profit; but it is otherwise of fruit-trees, grass, and the like, which are not planted annually at the expense and labour of the tenant, but are either a permanent or natural profit of the earth. (See 2 Black Comm. 123; Evans v. Roberts, 5 Barn. & Cr. 832).

The doctrine of emblements extends also to a crop of that species which ordinarily repays the labour by which it is produced, within the year in which that labour is bestowed, though the crop may, in extraordinary seasons, be delayed beyond that period. (Graves v. Weld, 5 Barn. & Adol. 105).

The executor or administrator, however, will not be entitled to the emblements against a dowress (2 Inst. 81), or against a devisee. (See West v. Moore, 8 East, 339).

By the 28 Hen. 8, c. 11, s. 6, it is enacted, that

Heir-looms, though they be mere chattels, cannot be devised away from the heir by will; and such a devise is void, even by a tenant in fee-simple. For, though the owner might, during his life, have sold or disposed of them, as he might of the timber of the estate, since, as the inheritance was his own, he might mangle or dismember it as he pleased; yet they being at his death instantly vested in the heir, the devise, which is subsequent and not to take effect till after his death, shall be postponed to the custom whereby they have already descended. (2 Black. Comm. 428, 429.)

Fixtures.-Questions respecting the right to what are ordinarily called fixtures may arise between the heir and executor, and the rule obtains with the most rigour in favour of the inheritance, and against the right to disannex therefrom, and to consider as a personal chattel anything which has been affixed thereto. In questions between the executors of tenant of life or in tail, and the remainderman or reversioner, the right to fixtures is considered more favourably for executors than in the preceding case between heir and executor. (Lord Ellenborough in Elwes v. Maw, 3 East, 51.)

Whatever is annexed to the freehold is to be considered as part of it, and will therefore pass to the heir. (Dudley v. Ward, Amb. 113.) To constitute such an annexation it is necessary that the article should be let into or united with the land, or to, substances previously connected therewith. It is not enough that it has been laid upon the land and brought into contact with it; the rule requires something more than mere juxta position, as that the soil shall have been displaced for the purpose of receiving the article, or that the chattel should be cemented or otherwise fastened to some fabric previously attached to the ground. (Treatise on Fixtures, p. 2.)

The cases which have principally arisen upon the question of what are fixtures, have been between landlord and tenant, where the greater latitude and indulgence has always been allowed in favour of the claim to having any particular articles considered as personal chattels as against the claim in respect of the freehold in inheritance.

The old rule between the heir and executor of a person entitled in fee-simple does not appear to have admitted of any exceptions. (Godolph, pt. 2, c. 14, s.1; Touchst, 470; Noy's Maxims, 51.) But this rule is now somewhat relaxed, and it has been held that where the fixed instrument, engine, or utensil (and the building covering the same comes within the

APRIL 3.]

As to fixtures put up for ornament or convenience, the cases upon the respective rights of the heir and executor are somewhat conflicting, and no general rule can be stated upon the subject.

THE LAW TIMES.

1.

The following, for the use of Practitioners in the County Courts, are published at the Law Trans Office.

II.

only two forms, all being for convenience of filing, printed on folio foolscap, per quire, 2s. The Forms, Nos. 1 to 38, some having Four Forms on a Sheet, others

quires, or 200 leaves. No. 1. Book for Plaint, 288.; No. 2. MinuteBook, 358.; No. 3. Execution-Book, 288.; No. 4, Cash-Book, 28s.; No. 5. Ledger, 428.; No. 6. Fee-Book, 38s.

The Books kept by the Clerk, bound in calf, each containing four

N.B. The name of the County, &c. printed in the Forms
and Books without additional charge.

III. The SECOND EDITION of PATERSON'S COUNTY COURTS
ACT, with the RULES, FORMS, and SCHEDULES, an Explanatory
Introduction, Notes, and a very copious INDEX of more than thirty-
four pages. Price 65. boards; 8s. bound; 9s. interleaved.

IV.

V.

in all the Courts, including Evidence, Stamps, and the Law of At-
torneys, issued at the close of each Term, in Parts, price 58.; in
Numbers, stamped to pass free by post, 1s. 6d. each.
The LAW DIGEST, a general half-yearly Index to all the Cases
reported and Statutes passed, alphabetically arranged, so that
the Practitioner is enabled to ascertain in a moment all that
has been decided or enacted on any subject during the half-year.
In Numbers, stamped for post, Is. id. each, or in Parts. Part I.
53. 6d.; Part II. 6s. 6d.; Part III. (nearly ready), 6s. To be conti-
nued regularly.
In the Press,

BITTLESTONE and WISE'S NEW PRACTICE CASES-Cases

W. Cox, Esq. Barrister-at-Law. Intended as a Manual for Practical
Use.
N.B. Members of the Verulam Society are entitled to the reduction
of Twenty per Cent.

Injuries to the person.-As to injuries to the same principle) was an accessary to a matter of a personal nature, such as a trade unconnected with the person it may be proper here to mention the recent land, it should be itself considered as personalty. statute of 9 & 10 Vict. c. 93, entitled "An Act for Where there is a mixed case between enjoying the compensating the Families of Persons killed by profits of the land and carrying on a species of trade, Accidents." By the first section of that statute it is the executor will be entitled; but where the fix-enacted, "that whensoever the death of a person shall tures are such that the inheritance cannot be enjoyed be caused by wrongful act, neglect, or default, and without them, they are considered as accessaries the act, neglect, or default is such as would (if necessary to the enjoyment of the principal, and death had not ensued) have entitled the party inbelong to the heir. (See Lord Ellenborough's jured to maintain an action and recover damages in judgment in Elwes v. Maw, 3 East, 38, where the respect thereof, then and in every such case the person who would have been liable, if death had not cases on this subject are reviewed.) ensued, shall be liable to an action for damages notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.' Donations mortis causâ.—“Where a man lies in By the second section it is enacted, "that every THE PRACTICE of the COUNTY COUNTS; a Treatise. By Edward extremity, or being surprised by sickness, and not such action shall be for the benefit of the wife, having an opportunity of making his will, but lest husband, parent, and child of the person whose he should die before he could make it, he gives death shall have been so caused, and shall be brought with his own hands his goods to his friends about by and in the name of the executor or administrahim-this, if he dies, shall operate as a legacy; tor of the person deceased; and in every such action but if he recovers, then does the property thereof the jury may give such damages as they may think revert to him." This is the description given by proportioned to the injury resulting from such death Lord Cowper (Hedges. Hedges, Prec. Chanc. to the parties respectively for whom and for whose 269) of a donatio mortis causa; and it is men- benefit such action shall be brought; and the amount tioned here for the purpose of stating that such so recovered, after deducting the costs not recovered gifts do not pass to the executor, nor is the execu- from the defendant, shall be divided amongst the tor's assent necessary. Though not included in the before-mentioned parties in such shares as the jury, valuation for probate, they are liable to legacy duty, by their verdict, shall find and direct." The third and to the debts of the testator, in case of a defi-section provides that only one action shall lie, and that shall be commenced within twelve months after the death of the deceased person, By the 4th section it is enacted, that with the declaration the plaintiff shall deliver a full particular of the person or persons for whom the action is brought, and the nature of the claim in respect of which damages are sought to be recovered.

ciency of assets.

CHAP. IV.-ON CHOSES IN ACTION.

A chose in action may be defined to be such property of which a man has not the occupation, but merely a bare right to occupy the thing in question, the possession whereof may be recovered by a suit or action at law. Thus money due on a bond is a chose in action; for a property in the debt vests at the time of forfeiture mentioned in the obligation, but there is no possession till recovered by course of law. If a man promises or covenants with me to do any act and fails in it, whereby suffer damage, the recompense for this damage is a chose in action. (2 Black. Comm. 397.)

I

What actions survive.-Such personal actions as are founded upon any obligation, contract, debt, covenant, or any other duty to be performed, survive to the executor or administrator. Formerly no action of account lay either for or against an executor, because the account rested in the privity and knowledge of the testator only; but this action is since given to executors by 13 Edw. 1, st. 1, c. 23, and against executors by 4 & 5 Anne, c. 16, s. 27. If the goods, &c. taken away, continued still in specie in the hands of the wrong-doer, or of his executor, replevin or detinue would lie for or against the executor to recover back the specific goods (Sir W. Jones, 173, 174), or, in case they were consumed, an action for money had and received to recover the whole. (Cow. 377.)

COUNTY COURTS.

A COMPLETE list of the judges has at length appeared, and will be found below. The names of the Clerks are not announced, but we hear that in one county at least (Somerset) there has been a departure from the plan elsewhere adopted of appointing a distinct Clerk for each Court Town, and Mr. CARROW has preferred to appoint one Clerk for the whole district, by whom a Deputy Clerk is appointed for each Court.

Business has begun in the Westminster Court. We give a brief report of the opening, may learn something of the form of the proand of one of the cases heard, that the reader ceedings. We repeat our request to practitioners in all parts of the country to forward to us brief notes of decisions on the points of practice which must continually arise for a long time to come.

It appears from the information received from various correspondents that many of the LAW TIMES, and appointed gentlemen to the judges have adopted the suggestion of the office of high bailiff.

THE CIRCUITS TO BE HOLDEN UNDER
THE SMALL DEBTS ACT,

Circuit No. 3.-J. H. Ingham: Alston, Carlisle, Cockermouth, Keswick, Penrith, Whitehaven, Wigton, Alverstone, Ambleside, Appleby, Kirkby Kendal, Kirkby Lonsdale.

Injuries to the real estate. By the 3 & 4 Wm. c. 42, s. 2, after reciting that there is no remedy provided by law for injuries to the real estate of any person deceased, committed in his lifetime, nor for certain wrongs done by a person deceased in his lifetime to another in respect of his property real or personal, for remedy thereof it is enacted, "that an action of trespass or trespass on the case, as the case may be, may be maintained by the executors or administrators of any person deceased for any injury to the real estate of such person committed in his lifetime, for which an action might have been maintained by such person, so as such injury shall AS APPOINTED BY have been committed within six calendar months THE LORD CHANCELLOR. before the death of such deceased person, and proCircuit No. 1.-G. H. Wilkinson: Gateshead, Alnwick, vided such action shall be brought within one year after the death of such person; and the damages Circuit No. 2.-Henry D. Stapylton: Durham, Hartlewhen recovered shall be part of the personal estate Bedford, Bellingham, Berwick, Haltwhistle, Hexham, Morof such person; and further, that an action of tres-peth, Newcastle, North Shields, Rothbury, Wooler. pass or trespass on the case, as the case may be, pool, Shotley Bridge, South Shields, Stockton, Sunderland, may be maintained against the executors or adminis- Walsingham. trators of any person deceased, for any wrong committed by him in his lifetime to another in respect The rule of actio personalis moritur cum persona of his property, real or personal, so as such injury received considerable alteration by 4 Edw. 3, c. 7, shall have been committed within six calendar months which reciting that in times past executors have not before such person's death, and so as such action had actions for a trespass done to their testators as shall be brought within six calendar months after of the goods and chattels of the said testators car- such executors or administrators shall have taken ried away in their lives, and so as such trespasses upon themselves the administration of the estate have passed unpunished, enacts "that the execu- and effects of such person; and the damages to be tor in such cases shall have an action against the recovered in such action shall be payable in like trespassers, and recover their damages in like man-order of administration as the simple contract debts ner as they whose executors they be should have had if they were living." This remedy is further extended to executors of executors by 25 Edward 3, c. 5, and to administrators by 31 Edw. 3, c. 11. The statute of 4 Edw. 3, being a remedial law, has always been expounded largely, and though it makes use of the word trespasses only, has been extended to other cases within the meaning and intent of the statute. (1 Ventr. 187; Sir W. Jones, 174; 2 Raym. 974.) Therefore, by an equitable construction of the statute, an executor or administrator shall now have the same actions for any injury done to the personal estate of the testator in his lifetime, whereby it is become less bene

ficial

of such person."

Where there has been a breach of a covenant real, running with the land, in the testator's lifetime, and the ultimate damage is sustained in his lifetime, the executor only can sue upon the covenant; but if the substantial damage has arisen since his death, the heir or devisee is the proper plaintiff. (Kingdon v. Nottle, 1 M. & S. 355; King v. Jones, 5 Taunt. 418; S. C. 1 Marsh, 107; affirmed on error, 4 M. & S. 188.)

Where the reversion is for years, the executor or administrator of the reversioner must be the person to sue for breach of covenant.

Actions on contracts not under seal relating to land are properly brought by the personal representative. (Knights v. Quarles, 2 Brod. & B. 102; S. C. 4 Moore, 532; Orme v. Broughton, 10 Bing, to the executor as the testator himself 533; S. C. 4 M. & S. 417.) might have had whatever, the form of the action may be. But the statute does not extend to injuries done to the person or to the freehold of the testator; therefore an executor or administrator shall A return has been printed of the number of nonnot have actions of assault and battery, false impointed to commissions from 1836 to 1846 inclusive prisonment, slander, deceit, diverting a water-commissioned officers of the army who have been apcourse, obstructing lights, cutting trees, and other the total is 376, classed thus-14 Cornets, 182 Ea actions of the like kind. (Sir W. Jones, 174; signs, 20 Adjutants with the rank of Cornet, 29 AdLatch, 168; 1 Vent. 187; see 1 Saund. 216, a,jutants with the rank of Ensign, and 131 Quartern. 1.)

masters.

Circuit No. 4.-T. B. Addison: Blackburn, Burnley,

Preston.

Circuit No. 5.-W. A. Hulton: Bolton, Chorley, Leigh,
Clitheroe, Colne, Garstang, Kirkham, Lancaster, Poulton,
Circuit No. 6.-W. Lowndes: Liverpool.
Circuit No. 7.-W. R. Henden: Altrincham, Birkenhead,
Ormskirk, St. Helen's, Wigan.

Chester, Knutsford, Nantwich, Northwich, Runcorn, Sal-
ford, Warrington.

Circuit No. 8.-R. Brandt: Manchester.
Circuit No. 9.-J. St. John Yates: Congleton, Hyde,
Macclesfield, Stockport, Glossop, Ashton.

Circuit No. 10.-T. Green: Bury, Haslingden, Oldham,
Rochdale, Saddleworth.

Circuit No. 11.-C. H. Elsley: Bradford, Keighley,
Ottley, Settle, Skipton.

Circuit No. 12.-S. Stansfield: Halifax, Holmfirth, Hud-
Circuit No. 18.-W. Walker: Barnsley, Doncaster, Goole,
dersfield, Todmorden.
Rotherham, Sheffield, Thorne.

Circuit No. 14.-J. H. Marshall: Dewsbury, Leeds, Pontefract, Wakefield.

Circuit No. 15.-R. Wharton: Boston, Knaresborough, mond, Stokesley, Thirsk, Whitby, York. Ripon, Selby, Easingwold, Leyburn, Northallerton, Rich

Circuit No. 16.-W. Raines: Barton-on-Humber, Beverley, Bridlington, Great Driffield, Headon, Howden, Kingston-upon-Hull, Pocklington, Helmsley, New Malton, Scarborough.

Circuit No. 17.-J. G. H. Smith: Boston, Brigg, Caistor, Market Rasen, Sleaford, Spilsby.

Gainsborough, Great Grimsby, Horncastle, Lincoln, Louth,

Circuit No. 18.-R. Wildman: Bingham, East Retford, Mansfield, Newark, Nottingham, Worksop.

Circuit No. 19.-J. S. Cauttrell: Alfreton, Ashbourne, Bakewell, Belper, Chapel-en-le-Frith, Chesterfield, Derby, Wirksworth, Buxton.

Circuit No. 20.-J. Hildyard: Ashby-de-la-Zouch, Hinck-
Circuit No. 21.-Leigh Trafford: Atherstone, Birming-
Harborough, Melton Mowbray, Grantham, Oakham.
ley, Leicester, Loughborough, Market Bosworth, Market
ham, Tamworth.

Circuit No. 22.-F. Trotter: Lutterworth, Daventry,
Southam, Stratford, Warwick, Skipton.
Banbury, Alcester, Coventry, Nuneaton, Rugby, Solihull,