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The late Chief Justice Tindal.
with which cases are submitted to him he was a careful examiner in chief, and a for his advice on difficult questions of law. cautious and judicious cross-examiner, In this respect Mr. Tindal was paticu- and assuredly none could excel him in the larly distinguished, and his opinions were clearness and logical force of his argumuch esteemed as well for their discrimi- ments before the court. Year after year nation and learning as for the conscien- brought him into increased practice of tious and cautious advice which they con- the best and most important kind; and tained. however unassuming in his natural character, he must soon have become satisfied by comparing his acquirements with those of his competitors, (to most of whom he was superior,) that nothing more was wanting than the adoption of that course which seems indispensable to the highest legal honors, that of a seat in parliament. To this honor he now aspired, and in the year 1824 he was elected one of the representatives of Wigton.
As at the bar, so in the senate, Mr. Tindal was noticed rather for his legal and historical knowledge than for his political or rhetorical attainments. How far he might have succeeded as a statesman and parliamentary orator had he chosen to devote himself to the pursuits which lead to eminence in those departments, it may be difficult to predict; but he seems always to have preferred solid to shining attainments, and to have aimed at the useful rather than the ornamental. It is indeed worthy of remark that at one time Mr. Tindal contemplated changing his practice at the common law bar for that of the Court of Chancery,—a sufficient proof that he did not esteem himself peculiarly adapted for the business of a jury court.
The first occasion, we believe, on which Mr. Tindal particularly distinguish ed himself before the court was in the year 1818, in the celebrated case of Ashford v. Thornton, 1 Barn. & Ald. 405, the last in which the right of trial by battle was discussed. Mr. Tindal was retained for the appellee, and ably and successfully argued the several points in his client's favor. Subsequently to this time, the attention of Lord Liverpool, the prime minister, was particularly directed to Mr. Tindal's merits in the case of the Deccan prize money, which he argued before the Lords of the Treasury. But the most remarkable trial in which Mr. Tindal was engaged was that of Queen Caroline in 1821. As one of the soundest lawyers at the bar, it was likely that he should be *sought by both parties. On terms of friendship with Lord Liverpool, it appears that his lordship was desirous that he should be retained on behalf of the King; but on sending to secure his services, it was found that Mr. Brougham, the Queen's Attorney General, his former pupil, who went the northern circuit with him, and, of course, knew the high esteem in which he was universally held for his legal attainments, had previously caused We come now to his next important him to be retained for the Queen. step in legal promotion. In Trinity vacaDoubtless he rendered to the Queen's at- tion, 1826, on the elevations of Sir John torney and solicitor much valuable aid in Copley, afterwards Lord Lyndhurst, to conducting a case of such extraordinary the Mastership of the Rolls, Sir Charles difficulty and vast magnitude. On all Wetherell was appointed Attorney Genequestions of evidence, his opinions must ral, and Mr. Tindal became Solicitor have had the greatest weight, and his General, and received the honor of knightsagacity and discretion were also of great hood. The Master of the Rolls continued importance in the various questions which to represent the University of Cambridge naturally came under the consideration of until he bacame Lord Chancellor, in the Queen's advisers. In skill and energy, April, 1827, during the administration of in vast resources and untiring zeal, he Mr. Canning. On the occasion of this was eminently assisted by his junior, Mr. vacancy, Sir Nicholas offered himself as Wilde, now the Chief Justice of the Com- a candidate to represent that learned Unimon Pleas. versity. Mr. Bankes, who held similar political opinions, also solicited their suffrages; but the votes for Sir Nicholas were 479, and for Mr. Bankes 378, being
If Mr. Tindal was not remarkable for his tact or skill in the examination of reluctant and artful witnesses at nisi prius,
The late Chief Justice Tindale.
a majority of 101. After representing | own court in Westminster Hall, or on apWigton, Sir Nicholas, at the general elec- peals in the Exchequer Chamber. There, tion in 1826, was chosen member for his profound legal learning and judicial Harwich, from which seat he withdrew on receiving the high honor of an election by his alma mater.
On the retirement of Lord Wynford from the Chief seat of the Common Pleas, in the Easter vacation of 1829, Mr. Tindal received the appointment of Chief Justice.
Whatever difference of opinion there may have been in estimating the degree of merit of Sir Nicholas as an advocate, the profession as well as the public, are united in ascribing to him the undoubted possession of the highest judicial qualities. His calm dignity and thoughtful demeanor well became the judgment seat, and whilst he preserved the decorum necessary to the proceedings of the court, he entered not into personal altercations with the bar. His grave urbanity and invariable good temper preserved him from those contests which had occasionally, under a previous chiefship, disturbed the serenity of the
His summings up to the jury were specimens of their kind, clear and concise in stating, and sagacious in commenting on the evidence before him, he never failed to inspire the jury and all who heard him with respect. In cases where minute and complicated facts were brought forward, he selected all that were important and presented them in the most lucid order. Where the evidence was conflicting, he directed the attention of the jury with remarkable discrimination, to the proper tests by which they might try the question and arrive at a just conclusion. The plausible theories which the advocate may have urged for the advantage of his client, it is of course the duty of the judge to investigate and expose to the jury. Here again, not only the logical powers, but the intuitive good sense of the justice, enabled him readily to extricate the case from the subtle difficulties which ingenuity had created, and to present it clearly and dispassionately for the consideration of the jury.
Whilst he was thus distinguished in the multitude of important trials which came before him, both civil and criminal, he was not less eminent when presiding in his
capacity were rarely equalled, and never surpassed. Thus, during the long period of 17 years, Sir Nicholas presided over the Court of Common Pleas, ably administering and expounding the law, and leaving on record many of the best judgments for the future guidance of the profession. We believe that the reports of his decisions down to the very last term, would supply the materials for an ample Digest of almost all the great principles of the law, clearly stated, powerfully reasoned upon, and for the most part conclusively settled.
Under the statute 6 Geo. 4, c. 23, the Chief Justice might have retired two years ago, at the expiration of 15 years from the time of his appointment, with a pension of £4,000 per annum, for life; but there was certainly no decline in his eminent faculties, and he continued to perform his important functions until within a very short time of his decease. Indeed, within ten days only of that lamented event, he attended with the other judges on an appeal in the House of Lords. There his last illness appears to have commenced, and soon after terminated fatally on the 6th July, in the 70th year of his age.
In private life, Sir Nicholas was eminently respected and beloved. He affectionately regarded his kindred, and liberally promoted their interests; yet ever with a just consideration of the claims of others. He was warmly attached to the church, but held his own firm opinions with no feeling of intolerance towards those who differed from him, either in doctrine or dicipline.
RESTRAINT OF TRADE.
We have laid before our readers, all the cases as they have been decided with reference to this subject. The following, we think, is a new point.
The defendant, by deed, assigned to the plaintiff his business as a surgeon and
The judge, in an action brought against the sheriff, as above, left it to the jury to say, whether or not the parties to the alleged fraudulent conveyance meant any thing to pass by it; the jury found in the negative; and a verdict was taken for the defendant. The case went to the jury without notice of any proof that the sheriff acted under a writ sued out by the judgment creditor, the effect of the recital in the warrant being overlooked by all parties. A new trial was moved for, on the ground that the sheriff, if standing in the situation of a stranger, could not impeach the deed; and the court was of this opinion; but, on showing cause, the effect of the recital in the warrant was pointed out and admitted by the court.
apothecary, carried on by the defendant in Park-street, Camden Town; and the defendant covenanted that he should not nor would, directly or indirectly, by himself, or in co-partnership with any other person or persons, carry on or exercise, his practice or profession as a surgeon and apothecary, or either of them, either by residing or visiting any patient within the distance of three miles from the then place of business of the defendant, in Parkstreet aforesaid: and that in case of any breach of this covenant, the defendant should and would pay to the plaintiff, the full sum of 500l., to be recovered against the defendant as and for liquidated damages, and not as a penalty. After the execution of this deed, the defendant attended several ladies in their confinement, within The court were of opinion that a new the three miles, and on one occasion receiv- trial ought not to be granted on the ground ed a sum of 147. 14s. for his services; but he merely, that the cause had been tried on attended these persons with the knowledge an assumption, that the alleged fraud would and consent of the plaintiff, in consequence be a defence to the sheriff, without taking of a request by him that the defendant the jury's opinion on the effect of the reshould for a time continue to visit the pa- cital as showing his right to make such detients, to keep the connexion together: fence. Bessey v. Windham, 6 Q. B. 166. and the jury in an action on the covenant, See also Doe d. Roberts v. Roberts, 2 B. & found that the defendant in these instances Ald. 367; Haynes v. Hayton, 6 Law J. exercised the practice and profession of K. B. 231. 7 B. & C. 293, n. (1); Goss a surgeon, for the purpose of assisting the v. Qainton, 3 Man. & G. 825; Wright v. plaintiff. The court held-1st, that for a Doe d. Tatham, 7 A. & E. 313; Crease breach of this covenant, the measure of v. Barrett, 1 Cro. M. & R. 919; S. C. damages was the full sum of 5007.; but 5 Tyr. 458; De Rutsen v. Farr, 4 A. & 2dly, that the above facts did not con- E. 53. stitute a breach of the covenant. Rawlin
son v. Clarke, 14 M. & W. 187. See also Cordwent v. Hunt, 8 Taunt. 596; West v. Blakeway, 2 M. & G. 729; 3 Scott, N. R. 199.
ASSIGNMENT IN FRAUD OF CREDI-
A SUMMARY Conviction is bad which does not show that the evidence was given in the presence of the party charged.
AN assignment of goods in fraud of creditors is valid as between parties to the deed, and as between either party and The same rule applies to warrants of a stranger. A sheriff claiming to seize commitment which operate in themselves the goods on behalf of a judgment credi- as convictions; thus a committal under tor is a stranger within this rule, if he the Artificer's Act, 4 Geo. 4, c. 34, s. 3, does not prove the legal authority under of a workman absenting himself from his which he is seized on behalf of such credi- service, set forth, that "information and tor. For this purpose it is sufficient, in complaint hath been made before me," trespass for the seizure, if he prove the (the justice,)" by F.," upon the oath of writ. And there is some evidence of the F., "for that," &c., (stating the charge): writ, if the plaintiff puts in the sheriff's" And whereas, the said F., in pursuance warrant to his officer, and that recites a of my warrant for that purpose, hath writ at the suit of the judgment creditor. this day appeared before me to answer
U. S. District Court.-Shepley v. Rangely.
the said complaint, but hath not proved whereupon T. would receive the goods that he is not guilty of the said complaint on payment of the duty according to his and charge: and whereas, in pursuance entry. It was further proved, that T.'s of the statutes in that case," &c., I have entry was marked "correct" by B., and duly examined the proofs and allegations corresponded with B.'s copy that payupon oath of both the said parties touch- ment was made according to the quantity ing the matter of the said complaint, and, there described; and that the goods were upon due consideration had thereof, have delivered to T. Evidence was then ofadjudged and determined the said com- fered of an entry by T., in his day-book, plaint to be true, and that," &c., (affirm- of the charge made by him on the iming the charge): "and I do therefore con- porter, showing that T. charged as for vict him, the said F., of the said offence, duty paid on a larger quantity than apin pursuance of the statutes in that case," peared by the copy before mentioned. &c.: "these are therefore to command It was held that this evidence was admisyou," (the constable,) &c. sible against B.
The above warrant being alone, returned to a habeas corpus ad subjiciendum. It was held, (1.) That it did not show that the evidence was given in the presence of F. (2.) That the court could not assume that there was a distinct conviction, free from the objection. Prisoner discharged. The Queen v. Fordoft, 5 Q. B. 933.
The following cases were cited: Johnson v. Reid, 6 M. & W. 124; Rex v. Baker, 2 Str. 1240; Rex v. Selway, 2 Chit. 522.
A COUNT for conspiracy charged that T. and B. conspired to cause certain goods, which had been and were imported and brought into the port of London, from parts beyond the seas, and in respect whereof certain duties of customs were then and there due and payable to the Queen, to be carried away from the port and delivered to the owners without payment of a great part of the duties, with intent thereby to defraud the Queen; not further describing the goods or the means of effecting the objects of the conspiracy. This was held to be sufficient, on motion in arrest of judgment.
T. did not appear; B. pleaded not guilty. On his trial it was proved that T. was agent for the importer of the goods, B., a landing waiter at the custom house; that it was T.'s duty (under the stat. 3 & 4 W. 4, c. 52, § 24,) to make an entry describing the quantity, &c., of the goods; that a copy of such entry was delivered to B., who was to compare this copy with the goods, and if they corresponded to write "correct" on T's. entry,
It was proved that B. received the proceeds of a cheque drawn by T., after the goods were passed. The counterfore of this cheque was offered in evidence, on which an account was written by T., showing, as was suggested, that the cheque was drawn for half the aggregate proceeds of several transactions, one of which corresponded in amount, with the difference between the duty paid and the duty really due on the above goods. It was held that this was not evidence against B. The Queen v. Blake, 6 Q. B. 126. The following cases were referred to in the judgment: Rex v. Watson, 2 Stark. N. P. Č. 140; Rex v. Hardy, 24 How. St. Tr. 199, 436, 447, 454, 865; Regina v. Murphy, 8 C. & P. 305.
U. S. District Court.
Before the Honorable ASHER WARE, District
JOHN R. SHEPLEY V. JAMES RANGELY,
BILL FOR PERPETUAL INJUNCTION-TITLE-
In a suit in equity for a perpetual injunction, it ap-
U. S. District Court.-Shepley v. Rangely.
Held, that if this was to be considered as in the nature of a bill quia timet it could not be supported until the title was determined by a suit at law. A court of equity has jurisdiction in such cases, to decide on facts without the intervention of a jury, but will not usually do so when the evidence is contradictory or inconclusive.
This was more properly in the nature of a bill of peace. To maintain such a bill when the interest of the plaintiff is present and not future, as in remainder or reversion, and he has a present right to the possession, three things must concur. 1. He must have the actual possession. 2. That possession must be disturbed. 3. His right must have been previously established at law. Where a party cannot bring his title to an immediate judicial examination, because his interest is future as in remainder, and because he is in possession, the only bill which can be maintained, is a bill to perpetuate the testimony. A court of equity will not entertain a bill, under the pretext of quieting the possession, to determine the rights of parties where there has been no suit at law to try the title.
collateral security for the debt, and the following day, Spring assigned to them a policy of insurance on his house, which was included in the mortgage as further security. On the 13th of July, 1836, one mortgage, on the payment of the full sum month or more after the foreclosure of the due to the bank, the trustees at the request of Spring and his wife, by a deed of quitclaim conveyed the land to Webster, the money, to the amount of $5000, having been advanced by him, and the balance of the $200, or sum paid by Spring. The deed recites, that entry had been made to foreclose the mortgage and that the right. of redemption had expired, and that Webster having at the request of Spring, paid the amount that would have been due on the mortgage, the conveyance was made at the request of Spring and his wife to Webster, and was intended to discharge THE facts of this case as they appear all the title acquired by the bank. in the pleadings and evidence, are shortly deed was drawn by the plaintiff's grantor as follows. John Spring and Olive his and the acknowledgment taken by him. wife, on the 4th of January, 1830, mort-Webster, as is alleged in the bill and not gaged the land in controversy, together denied in the answer, conveyed the land with other real estate, lying in the town by deed, April 12, 1832, to Daniel Burnof Saco to the Saco bank, to secure the payment of a note of $6000. Spring, April 14, 1832, conveyed by a quit claim deed to Ether Shepley, the equity of redemption of certain lands mortgaged to Sarah Parkman, and by the same deed conveyed this land now in controversy, which was included in the mortgage to the bank, for the consideration of $1000. On the 9th of May, or of June, 1833,for the evidence leaves it uncertain which, the bank by their attorney, Ether Shepley, the plaintiff's grantee, entered on the land for condition broken, and on the 9th of June, 1836, three years having elapsed, the mortgage, as contended for the defendant, became foreclosed, and the title of the bank absolute. On the 13th of September, 1833, the bank conveyed all its estate and effects to trustees, to sell and dispose of, for the purpose of winding up the business of the bank and dividing its effects among the stockholders. On the day when the time of redemption expired, that is, on the 9th of May or June, 1836, Spring offered in payment of the debt, the check of Webster, payable at a future day, but the trustees refused to receive it as payment, and it was left with them as
ham, but the defendant alleges, that before that time, he attached the land as the property of Webster, in a suit against Webster and Burnham, and prosecuted his suit to judgment, on which, execution was issued in June, 1839, and within thirty days after the rendition of judgment levied on the land. On the 5th of April, 1843, Ether Shepley conveyed his title by a deed of gift to the plaintiff, and he claims to hold the land under Spring's deed to his grantor, of April 12, 1832. The defendant claimed title under his levy, tracing it back to the mortgage to the bank, of January 4th, 1830.
land may be declared to stand redeemed
questions involved in the case.
G. R. Shepley, for the plaintiff.