Superior Courts: Vice Chancellor. 127 larity of one part of the orders made in those obliging him to procure his assignees to file a cases, by other parts of the same orders, re-supplemental bill, at the peril of having his specting the irregularity of which, I believe no bill dismissed, if he failed to do so. The case doubt can be entertained. The orders, as I un- of Wheeler v. Malins, 4 Mad. 171, is to the derstand them, charge the executors, (who same effect. bave never become personally connected with Next, as to the cases in which injunctions the suit) with the costs incurred by their testa- have been in force at the time that the suit tor in his lifetime. This, if it be the effect of became abated. These cases appear to admit the orders, cannot be the result of a deliberate of an explanation similar to the last. By the judgment of Lord Eldon. Whether that is the abatement of the suit, all orders made in it necessary effect of them or not, the Master of would naturally drop. When, therefore, the the Rolls, in his judgment in Chorick v. Dimes, Court, before it will permit an injunction to expresses a manifest disapprobation of the drop, on the ground of the suit being abated, orders cited, so far as they relate to the costs. gives the representatives of the deceased Indeed, so far as they do so, they appear to be plaintiff notice that the injunction will be displainly inconsistent with the well established solved unless the suit is revived in a limited practice of the court, and upon a ground dis- time, it makes no order against the representatinct from that already referred to." It is a rule tives; but, as a matter of indulgence, merely of court, (much complained of, and therefore gives them notice that the natural consequence clearly understood) that a suit cannot be re- of the abatement of the suit will ensue, unless vived for costs alone, even where those costs they take the proper measures to prevent it. have been actually awarded before the suit And when the Court makes an order in the became abated: nor can such costs be taxed abated suit, that the injunction be dissolved, it pending the abatement, and they are lost to decides only that it will no longer prevent the the party to whom they have been awarded: natural consequences of the abatement of the whereas by the cases cited in Chowick v. Dimes, suit. This is very different from making an it would appear that the court may make an adverse order against one who is not a party original order for payment and taxation of to any existing suit. In all the other cases of costs, notwithstanding and during an abate- a suit becoming abated by the death of a sole ment of the suit, that is to say, without the plaintiff, except the case of Burnell v. the Duke suit being revived. The cases cited in Chowick of Wellington, 6 Sim. 461, it will, I believe, be v. Dimes, and in the notes, except so far as found that the order was made against a they relate to the dismissal of the bill with or person who, in some way or other, had made without costs, appear to me to be generally himself amenable to the jurisdiction of the regular, but to furnish no analogy to the order Court in the suit in which the order was made. prayed here. And the circumstance that those The order in Froward v. Bingham, 4 Sim. orders are in part regular, tends much in my 483, which is a case of the class to which I opinion, to fortify the conclusion to which I have last referred, being confined to the bill of have come, that they may be in part the order revivor, and not extending to the original suit, of the court, and in part the order of the par- shews the opinion of the Court to have been, ties, without the approbation of the court. that it could not deal with the abated suit. First, as to the cases in which a sole plaintiff The case of Adamson v. Hull, 1 S. & S., 249, has become bankrupt; bankruptcy, according 1 Turn. & Russ. 258, in which one of several to the practice in Chancery, renders a suit de- plaintiffs died, leaving the others surviving, fective, but does not cause an abatement. The and the cases in which a person has married a bankrupt plaintiff, however, is placed under sole female plaintiff, do not necessarily furnish an incapacity, permanent or temporary, as the a precedent for a case like that before me, in case may be, to prosecute the suit, and by the which the party to be affected by the order, is, non-prosecution of it for a given time, the de-both in form and substance, a stranger to the fendant acquires a right to have the bill dismissed. In principle, there seems to be no positive reason why this should not be done as against the bankrupt, without noticing the assignees. When the court, in such cases, makes an order that the bill be dismissed (but always without costs) unless the assignees file a supplemental bill within a limited time, the court makes no order against the assignees: it merely gives them the benefit of a notice, that the bankrupt's defective suit will be dismissed as against him, unless the assignees take proceedings to sustain the original suit. This, which is an indulgent act towards the assignees, cannot sanction an order being made against them in an abated suit, to which they are not parties. The language of Lord Eldon, in the case of Randall v. Mumford. (18 Ves. 427,) shews that, formerly, the Court acted only against the bankrupt in those cases, record. But, with respect even to those cases, considering how little the subject has been discussed, I cannot help doubting their regularity, regard being bad to the known effect of an abatement of the suit upon the right to costs. And if, in that respect, the orders are irregular, it cannot, under the circumstances, but shake their authority altogether. Burnell v. the Duke of Wellington was decided by the same judge who afterwards decided Canham v. Vincent. I trust that this case will be brought to the attention of the Lord Chancellor, and if he should not uphold the decision in Chowick v. Dimes, but should be of opinion that the practice of the Court requires amendment in the particulars under consideration, no difficulty can be experienced in making such an amendment. I know that Vice Chancellor Bruce is strongly impressed that the practice is settled as to abatement of the suit by the death of the 128 Superior Courts: Vice Chancellor; Common Pleas.-Editor's Letter Box. sole plaintiff. I shall make no ord er on this motion, not even for the disinissal of the bill without costs. Lee v. Lee, M. T. 1842. Vice Chancellor Knight Bruce. PLEADING.-DEMURRER.-CONSTRUCTION OF 36TH ORDER OF AUGUST 1841. A bill prayed a declaration by the Court, that certain letters constituted an agreement, and also sought relief by discovery. The defendant put in a demurrer to the former part of the bill, but taking no notice of the latter. The demurrer was overruled, on the ground that it did not extend to a matter material to the plaintiff's case. Held, also, that the 36th order did not prevent such a demurrer from being overruled. The plaintiff filed his bill, praying the declaration of the Court, that two letters therein set forth, constituted an agreement between the parties, and also asked relief by discovery. A demurrer was filed by the defendant, extending only to the former part of the prayer. Simpkinson and Wright, for the demurrer, relied upon the 36th order of 1841. K. Parker and Mylne, for the plaintiff, contrá. Sir J. L. Knight Bruce, V.C.-The 36th order does not state, that in no case whatever may a demurrer be overruled, because it does not cover as much as by law it might; it simply says that it shall not be "overruled or held bad only on that account." Here the relief sought by the bill, is as to matters essential to the case of the plaintiff. I inust overrrule the demurrer on this short ground, that there is something of a specific and precise nature material to the plaintiff's case, and without which he could not succeed, but which would not be met by the record in its present form. If I were not to overrule it, it seems to be, I should be acting inconsistently, both with the letter and spirit of this order.a Dell v. Hule, M. T. 1842. Common Pleas. TITHE COMMUTATION ACT.-SUING OUT WRIT OF SUMMONS. The Court will not set aside a writ of summons on motion, which has been issued under the 46th section of the 6 & 7 W. 4, c. 71, upon a suggestion that it has not been served within the time limited by the act for the commencement of the suit. Mr. Serjt. Talfourd moved for a rule for setting aside the writ of summons in this suit, As to the practice where the plea or demurrer ought to have extended to the whole of the bill, but went only to a part. Vide. Demys v. Locock, 3 Myl. & Cr. 235; Story's Eq. Pl. 298, 438; Mitf. Tr. 215. with costs. The action was brought under the Tithe Commutation Act (6 & 7 W. 4, c. 71.) The 46th section of that act provides that any person claiming to be interested in any lands, or in the tithes thereof, who shall be dissatisfied with the decision of the commissioners, may, if the yearly value of the payment to be made or withholden exceed the sum of 20%., cause an action to be brought in any of her Majesty's Courts at Westminster, against the person in whose favor such decision shall have been made, within three calendar months after such decision shall have been notified in writing. In this case the commissioners had notified their decision on the 8th March; the writ served until the 2d September. It was urged of summons was sued out in June, but was not that the writ was spent and abandoned by reason of the service of it not having been effected within the three months prescribed by the statute for the commencement of the suit. The action was the creature of the statute, and such being the case, time was the essence of it. Per Curiam. The issuing of the writ is regular; the defendant had better, therefore, take his stand when the feigned issue is delivered, and then urge his objection that the plaintiff is out of time. Rule refused.-Barker v. Birch, M. T. 1842. C. P. THE EDITOR'S LETTER BOX. In answer to B., it seems clear that an attorney cannot charge a debtor for the cost of a debtor tenders the whole debt. Morrison v. Simletter sent before a writ of summons, in case the Practice, v. 3, p. 136, 2 edit.; also 15 Legal mers, 1 Bar. & Adol. p. 559; Chitty's General Obs. p. 104. In answer to "Jaques," we have only to say that we suggested such explanation as occurred to us. No doubt a much better one can be given. We are, at all events, not aware of any practical grievance in the present plan. The question of an Articled Clerk, at Birmingham, seems to be settled by the late Copyright Act. "A Young Solicitor" states that A. on a mortgage to B., placed his title deeds in the hands of B.'s solicitor. There was no abstract, B.'s solicitor charged 4. for an abstract of nor was anything said about preparing one. those deeds, and also of the mortgage; and he enquires whether the solicitor is entitled so to do? Also, whether in case of a purchase under similar circumstances, the purchaser's solicitor is entitled to charge the vendor for an abstract? The communications of "A Constant Reader," "F. T. S.," and "A Mortgagor," have been received. The Legal Almanac, Remembrancer, and Diary, for 1843, is now ready. The Legal Observer. SATURDAY, DECEMBER 17, 1842. "Quod magis ad Nos HORAT. SERJEANT STEPHEN'S COMMEN TARIES.a We noticed the first volume of this work when it appeared, and we are glad to see the appearance of the second; and it may be well to take this opportunity of considering the distinctive features of the work. If any one doubted the merit of Mr. Justice Blackstone's Commentaries, they must by this time be convinced of their error. Year after year has rolled on since they were compiled; books on books (some of an institutionary character) have appeared; but neither the allegiance of the profession nor the public to the great commentator has been shaken. On the contrary, his popularity has increased. Eight editions of the work were published in the learned author's lifetime. În 1782 the ninth edition, by Dr. Burn, appeared, and since that period, at least eleven other complete editions have been published in this country, besides several American editions; and the whole work is read and consulted by a larger number of persons than ever. The last ten years, however, have made sad havoc with the Commentaries. They had undergone but slight alteration down to the time of Mr. Justice Coleridge's edition in 1827, as may be easily seen by a reference to the notes and additions made by that learned person. Many of these are corrections of the text; others simply refer to the statutes, and occasionally the cases, which have altered it; but down to this period New Commentaries on the Laws of England, (partly founded on Blackstone,) by Henry John Stephen, Serjeant at Law Vol. 2. London, 1842. VOL. XXV.-NO. 756. the original work might safely have been perused, without having the labour of unlearning all that had been read when we got to the end of the chapter. Since that time, however, but more especially since the year 1830, the alterations made have been great indeed. The doubt created in the mind of the reader is now what is there that remains? If he hastily runs over the heads of the chapters, he will easily remember some statutory change which affects almost every one of them. The genius of Reform has now breathed on almost every part of the work. The labours of the law commissions and the impetus thereby given to administrative alterations, have entirely altered the practice of the law in almost every department, and in many cases, principles which Blackstone looked upon as immutable, have been directly repealed. Tempora mutantur et nos mutamur in illis, and so must our law books. These being admitted facts, it was not strange that it occurred to several persons, almost at the same time, that Blackstone, to be useful, must be greatly altered. " Though the celebrated Treatise of Blackstone," says Mr. Serjeant Stephen, in the preface to his first volume, "still remains without a rival as an introductory and popular work on the Laws of England, the positions it contains have been nevertheless so trenched upon by recent alterations in the law itself, that if the student were to rely upon its text as containing an accurate account of our present system of iurisprudence, he would be led continually astray. The later editions have conse quently comprised a copious accompani ment of correction and supplementary notes at the bottom of the page, but it is not in I 130 Serjeant Stephen's Commentaries. the nature of such a method (with what- The next marked difference of the preever ability pursued) to give entire satisfac-sent work, is, that the Serjeant distinguishes tion, because it obliges the reader to trans- with great exactness those parts or senfer his attention incessantly from the text tences, and even words, he has taken from to the commentary, and augments also, to a Blackstone, by the means of brackets, considerable extent, the bulk and conse-which enclose them from the rest of the quent expense of the volumes." He had before noticed that since 1836 several works had issued from the press "containing rePublications of Blackstone's text, in forms more or less entire, with the intermixture of new matter by the respective editors," which, he says, affords some testimony to the value of his conception, "although there is no collision between any of these works and my own." This being the general nature of the work, we shall proceed to point out the leading distinctions between Mr. Serjeant Stephen's work and all pre-ence had been made to the page of Blackceding works founded on Blackstone. The most marked difference between this and all other works taking Blackstone as their foundation, is, that Serjeant Stephen dissents entirely from the arrangement of matter made by the first learned commentator. Instead of the well-known division of Blackstone-1. The Rights of Persons; 2. The Rights of Things; 3. Private Wrongs; 4. Public Wrongs; Serjeant Stephen's first Book consists of Personal Rights; but these, according to the present arrangement, are disposed of in fifteen pages. Next comes Book II, of Rights of Property, and these occupy considerably more than one whole volume. Then comes Book III, of Rights in Private Relations, which are disposed of in about eighty pages more; and, lastly, so far as the present two volumes are concerned, comes Book IV, which occupies nearly three hundred pages more. Two other Books are yet to be published; Book V, of Civil Injuries; Book VI, of Crimes. text; but it is not to be concluded that all the text without the brackets is Serjeant Stephens'. It is very frequently Blackstone a little altered. The great practical inconvenience in this is, that the reader is unnecessarily perplexed with these marks, which call off his attention, without, as it appears so us, answering any adequate end. The plan shows a very scrupulous desire not to appropriate the property of the original work unduly; but this object might have been as effectually answered if refer stone from which the passage was taken; and this latter plan would have been more useful to the reader, as he has at present no other guide than a reference to the chapter; and as the matter is transposed, it is not always easy to find this, and still less the particular part of the chapter. We should not have made these remarks, if we did not think the work a highly valuable one: and with the hope that it is not yet too late to make them beneficially. We would strongly urge upon the author, in the remaining volumes, to dispense with brackets altogether; to refer, instead of this, to the page of Blackstone which is made the foundation of the text, either in the side or foot note, which will enable the reader readily to see, by reference to the original work, what the alterations are. We are sure that the learned Serjeant is quite capable of producing an excellent work and if he has not yet produced it, it is because he has chosen to go through the task with these self-imposed incumbrances, which not only effectually hamper the author, but distract the attention of the student, and deprive the work of much of its usefulness. The arrangement of the Now we cannot see that this arrangement is so obvious an improvement on that of Blackstone as to have justified the departure from the old and well-known arrange ment of Blackstone, and it entails on the reader the serious inconvenience of master-work cannot now, we fear, be altered; but ing Serjeant Stephen's plan, as yet incomplete, before he can find out where the particular chapter, or part of a chapter, is to be found to which he may wish to refer. We cannot see, for instance, why Book III, Rights in Private Relations, Master and Servant, Parent and Child, &c. might not have been well placed, as Blackstone placed them, in Book I, of Rights of Persons; and we cannot think that any adequate reason is given for departing from the arrangement sanctioned both by Hale and Blackstone. the learning and information contained in its pages may be rendered available to a much larger class, if the author takes a bolder flight. Composed on the present plan, the work has neither the advantage of being an edition of Blackstone nor an original work; and we are persuaded that we speak the opinion of many of its readers and admirers, when we say that its utility would be doubled if our remarks, which are made in no unfriendly spirit, should reach the learned author, and be well received. Practical Points.—The Introductory Lecture of Mr. John Adams. 131 PRACTICAL POINTS OF GENERAL | twelve years of age, is now in court. Though INTEREST. CUSTODY OF BASTARD. In the case of a legitimate child, when an infant is brought before the court by habeas corpus, if he be of an age to exercise a choice, the court leaves him to elect where he will go. Per Lord Denman, C. J., Rex v. Greenhill, 4 Ad. & El. 624. But when the person is too young to have a choice, we must refer to legal principles to see who is entitled to the custody, because the law presumes that where the legal custody is, no restraint exists, and where the child is in the hands of a third person, that presumption is in favour of the father. Per Coleridge, J., in Rez v. Greenhill, ubi. sup. But with respest to the custody of an illegitimate child, much doubt exists. The putative father not fourteen, still she is of age to choose for herself: we are not called upon to exercise a discretion for her. If she be willing to go to her mother, she may; but no force shall be used." The reporter adds, the child being asked whether she was willing to go to her mother, evinced the most decided repugnance to do so. She was then informed by the Lord Chief Justice, that she was at liberty to go where she pleased, and accordingly she left the court accompanied by a female by whom she had been brought. Upon her leaving the Court, an attempt was made by the mother and her friends to take forcible possession of the child. This being communicated to the Lord Chief Justice, one of the officers was sent to protect her. In re Ann Lloyd, 4 Scott, N. R. 200. has clearly no right to the custody of the THE INTRODUCTORY LECTURE OF 579. child, and where he obtained possession by force or fraud, and the child is of tender age, as from three to five years old, the court delivered the child over to the mother, King v. Soper, 5 T. R. 278; Rex v. Moseley, 5 East, 224; King v. Hopkins, 7 East, But when the child is of an age to judge for himself, he will not be delivered up to anybody, but will be simply freed from improper restraint. Lord Mansfield held the rule to be, that the child should be discharged from all restraint, and be at liberty to go where he would, and whoever should offer to meddle with her redeundo, let them take notice that they do it at their peril. Rex v. Delaval, 3 Burr. 1434. In a very recent case, a writ of habeas corpus, was issued at the instance of one Ann Lloyd Bowser, described as the wife of one Samuel Bowser, of Pembury, in the county of Carmarthen, from whom she was living apart, directed to a gentleman named Lloyd, who resided in Anglesea, commanding him to bring up the body of Ann Lloyd, an infant between eleven and twelve years of age, the fruit of an illegal intercourse between Mr. Lloyd and Ann Lloyd Bowser, before her marriage. After much discussion, Tindal, C. J., said this is a case of considerable difficulty, and we cannot help feeling much distressed, at being obliged to come to a decision upon it. The writ of habeas corpas, which was granted to the mother of the infant, an illegitimate child, for the purpose of bringing her up from the custody in which she had been placed by the supposed father, has been obeyed, and the infant, who is sworn to be, and evidently is, about MR. JOHN ADAMS, Delivered at the Incorporated Law Society, Nov. 11, 1842. MR. Adams began by stating, that the object of his lectures was, a brief explanation of what but connected outline of its principal objects is meant by Equity Jurisprudence, and a slight and methods of proceeding. For this purpose, Mr. Adams proposed, first, to enquire what is meant by Equity, as the term is technically used in our English law, and wherein it differs from that which is called the Common Law. Secondly, to point out the to consider the nature of the machinery by main objects of its jurisdiction. And, thirdly, which it acts. He wished in doing this, to guard against a not unusual error, that Equity meant, what is popularly called Honesty and Justice, as being, in some peculiar sense, different from the because a particular case seemed hard, and yet strict law of the land; and the notion that, the law had not declared it to be so, therefore a Court of Equity might interfere, and rectify the imagined injustice. He said that such a doctrine is, in reality, wholly unacknowledged by the Court of Chancery. That it might be true, that individual judges in Chancery, as elsewhere, had occasionally been led by the hardship of a particular case, to make an unsound or an illegal decision; but it was not true that a right to make such decisions was, or had ever been, an avowed principle; nor could it possibly be so avowed, unless by claiming the authority of a legislator, rather than of a judge, and asserting a power, not to mitigate the law, but directly to repeal it. of his hearers to the mode in which the jurisHe then proceeded to direct the attention diction itself originally arose; not, as he explained himself, how the Chancellor acquired |