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TITHES AMENDMENT.

36

New Statutes effecting Alterations in the Law. liberty to transfer or deposit such stocks or securities into or in the name of the said Accountant-General, with his privity, in the

10 & 11 Vict. c. 104, matter of the particular trust, (describing the An Act to explain the Acts for the Commutasame as aforesaid,) in trust to attend the orders

tion of Tithes in England and Wales, and to of the said court; and in every such case the

continue the Officers appointed under the receipt of one of the cashiers of the said bank

said Acts until the First Day of October, for the money so paid, or, in the case of stocks

One thousand eighit hundred and fifty, and or securities, the certificate of the proper officer,

to the End of the then next Session of of the transfer or deposit of such stocks or se

Parliament.

[22nd July, 1547.] curities, shall be a sufficient discharge to such trustees or other persons for the money so paid, 1. 68:7 W. 4, c.71.-5 Vict. c. 7.–5 § 6 or the stocks or securities so transferred or Vict.c. 54.–So much of recited acts as limits deposited.

the duration of tithe commission repealed.2. Court of Chancery to make orders on pe- Powers of commissioners, $c., to continae in tition, without bill, for application of trust force till October 1, 1850, unless sooner determonies and administration of trust. That such mined. — Whereas by an act passed in the orders as shall seem fit shall be from time to seventh year of the reign of his late Majesty, time made by the High Court of Chancery in intituled' “An Act for the Commutation of respect of the trust monies, stocks, or securities Tithes in England and Wales,” tithe commisso paid in, transferred, and deposited as afore- sioners for England and Wales were appointed, said, and for the investment and payment of and by the said act, and by sundry acts since any such monies, or of any dividends or in- passed for the amendment thereof, and for terest on any such stocks or securities, and for continuance of the said commission, the powers the transfer and delivery out of any such stocks of the said commissioners now stand limited, and securities, and for the administration of and will expire at the end of the session of parany such trusts generally, upon a petition to liament next after the 31st day of July, in this be presented in a summary way to the Lord year 1847; and it is expedient that the same Chancellor or the Master of the Rolls, without be further continued : Be it enacted by the bill, by such party or parties, as 10 the court Queen's most excellent Majesty, by and with shall appear to be competent and necessary in the advice and consent of the Lords spiritual that belialf

, and service of such petition shall and temporal, and Commons, in this present be made upon such person or persons as the parliament assembled, and by the authority of court shall see fit and direct; and every order the same, That so much of any of the recited made upon any such petition shall have the acts as limits the time during which any tithe same anthority and effect, and shall be enforced commissioner, assistant commissioner, secre. and subject to rehearing and appeal, in the tary, or assistant secretary, or other officer or same manner as if the same had been made in person appointed or to be appointed under the a suit regularly instituted in the court; and if first-recited act, shall hold his office to the said it shall appear that any such trust funds cannot 31st day of July, shall be repealed; and that be safely distributed without the institution of the commissioners and assistant commissioners, one or more suit or suits, the Lord Chancellor secretary, assistant secretary, and other officers or Master of the Rolls may direct any such suit and persons appointed or to be appointed under or suits to be instituted.

the first-recited act, may continue to hold their 3. Regulating salary of Accountant-General. several offices, if not sooner removed by lawful _That the additional remuneration which the authority, until the first day of October, in the said Accountant-General may receive in conse- year 1850, and until the end of the then next quence of the operation of this act shall not session of parliament; and that all the powers liave the effect of giving to him any claim for a of the said commissioners, and their assistant larger income by way of salary or otherwise, in commissioners, secretary, assistant secretary, the event of the said office of Accountant- officers and servants for the time being, shah General being hereafter regulated by competent continue in force, acccording to the provisions authority, than would have been assigned to of the said several acts as amended by this act, him if this act had not been passed.

until the said first day of October, and the end 4. Lord Chancellor, with Master of the Rolls, of the then next session of parliament, unless &c., may make generul orders. That the Lord her Majesty shall be pleased sooner to deterChancellor, with the assistance of the Master mine the said commission. of the Rolls, or of one of the Vice-Chancellors, 2. Confirmed apportionments to stand good. shall have power, and is hereby authorised, to -And whereas by the first-recited act it was make such orders as from time to time shall enacted, for the quieting of titles, that no conseem necessary for better carrying the pro- firmed agreement, award, or apportionment visions of this act into effect.

shall be impeached after the confirmation there5. Construction of expression Lord Chan- of by reason of any mistake or informality cellor.”- That in the construction of this act the therein, or in any proceeding relating thereexpression “the Lord Chancellor” shall mean unto, and doubts have been entertained as to and include the Lord Chancellor, Lord Keeper, the full meaning and extent of such enactment; and Lords Commissioners for the custody of the be it declared and enacted, That, notwithstandGreat Seal of Great Britain for the time being. ing any exception in the said act contained

367

New Statutes.

Review : Coote's Practice of the Ecclesiastical Courts. every instrument purporting to be an instru- ecclesiastical courts is made known to the ment of apportionment, confirmed under the profession at large through the medium of hands and seal of the said tithe commissioners, various treatises and reports of cases deshall be hereby absolutely confirmed and made cided, the practice in those tribunals, has valid, both at law and in equity, in all respects, hitherto been “a sealed book.” The princithe tithe commissioners in the first-recited act, ples of law have been well expounded by the or in any act passed for the amendment there- learned advocates of Doctors' Commons, of, for alteration of any instrument of ap- but, with one exception, they appear portionment.

to have deemed the subject of pro3. Instruments of apportionment may be cor- cedure in the courts as beneath their rected if any lands shall have been improperly notice. Doubtless, the course of proceedincluded or charged with rent-charge therein.-9 & 10 Vict. c. 73.—That if it shall be shown ing; the forms and details of practice, -are to the satisfaction of the said tithe commis- well known to that respectable anil limited sioners that any lands have been improperly body the proctors of Doctors' Commons. included or improperly charged with rent- Standing in the same relation to the suitors charge in any confirmed instrument of appor- in the ecclesiastical courts as the attorneys tionment, it shall be lawful for the said tithe and solicitors do to the courts of common commissioners to correct such apportionment, law and equity, they are the depositories and the deposited copies thereof, either by excluding such lands so improperly charged from of the rules by which the court is ordinarily the apportionment, and re-distributing any governed, and which experience has prérent-charge imposed upon such lands on lands scribed either as convenient or advanlegally liable to the payment thereof, or by tageous to the officers and practitioners, sanctioning the redemption of the rent-charge or tending to save the time of the so improperly charged by the persons capable court, or to diminish the topics of controof redeeming the same under the provisions of an act of the last session of parliament, intituled

versy. “An Act further to amend the Acts for the

In the courts of law and equity, from the Commutation of Tithes in England and Wales ;" complication of matters of practice and the and all costs and expenses attendant upon the multitude of practitioners,—more or less correction of any confirmed instrument of ap- versed in the technicalities which arise out portionment shall be borne and paid by such of the vast variety of legal procedure, persons and in such proportions as the said books of practice exist in comparatively tithe commissioners shall direct, and shall be large numbers for the guidance of all who recoverable from the liable by the said tithe commissioners to the seek the officina justicia. A succession of payment of the same in such manner as ex- able writers have appeared in this departpenses attendant upon original instruments of ment of legal lore. In the last age, in the apportionment are recoverable.

common law courts, there were Impey, 4. Instruments to be delivered up for the pur- Tidd, and the elder Chitty : in the present, pose of such correction. That for the purposes Archbold and Chitty, jun., and latterly of such correction or of recording any such re- Bagley and Lush. In equity, Turner and demption the person or persons having the Venables were formerly the principal custody of any copy of any instrument of portionment shall be bound, upon the applica- authorities, now succeeded by Daniel, tion of the tithe commissioners, to deliver to Sidney Smith, and many othersthe said tithe commissioners any copy of a

The practitioner in the ecclesiastical confirmed instrument of apportionment which courts appears to have depended on his shall have been deposited with them re- personal knowledge, or his ready access to spectively.

the officers of court, (like, the late six

clerks' office in Chancery,) and probably NOTICES OF NEW BOOKS. on the good understanding which is easily

kept up amongst a small body of men, all The Practice of the Ecclesiastical Courts, practising in the same locality. Now, with Forms and Tables of Costs. By Commons, but the solicitors who neces

however, not only the tyro in Doctors' HENRY CHARLES Coote, Proctor in Doctor's Commons, and one of the Ex- sarily resort to the agency of proctors, are aminers to the Judicial Committee of made acquainted with the practice and her Majesty's most Honourable Privy

course of proceeding, which hitherto has Council and the Arches and Prerogative been of a traditionary nature, or confined Courts of Canterbury. London: Henry Butterworth. 1847. Pp. 966.

a See the sections on Practice in Dr. R.

Phillimore's edition of Burn's Ecclesiastical Whilst the law as administered in the Law.

person or

368 Review : Coote's Practice of the Ecclesiastical Courts, with Forms and Tables of Costs.

to the offices in which the business is and from this part of his work we extract transacted.

the following passages as illustrative of his In the composition of a work on the style and manner :practice of these courts we should have

“The establishment of these courts was in preferred that the task had fallen into the this country of considerable later date than in hands of one of the older practitioners ; but alınost any other state of Europe. On the con. as it has not suited the leisure or conve- tinent they had been in active operation ever nience of any of them to encounter the since the reign of the Emperor Theodosius, the labour, we are glad that it has been under- younger, to whom must be ascribed their first taken by Mr. Coote, one of the junior legalization. But even before that age the seproctors ; and we shall proceed to advert paration of the Christian body from the nation

at large, which still adhered to paganism in to the

scope of his work,—in the Preface almost all material points, both in practice and to which, it is stated, that

opinion, had occasioned many peculiar ques.

tions in which their faith might be in some de“The principles which regulate the judicial gree compromised or implicated, to be treated practice of the Ecclesiastical Courts have, in upon and determined by their own assembly their older form, been illustrated by Clerke, under the supervision of the higher priesthood, Conset, and Oughton; the latter of whom has and without the intervention of the ordinary also annexed to his work some formular prece- civil tribunals of the state. This, we have every dents, which have long since, however, become reason to regard as the first germ of the Eccleobsolete and impracticable.

siastical Jurisdiction, an authority peculiar to, “With this solitary exception, (if, indeed, it and perhaps co-existent with, Christianity be such,) there is not, as far as I am aware, itself, and to which it is impossible to find an any publication either of early or recent date, exemplar or analogy in any pagan state of an. which has been conceived upon the plan of the tiquity. present compilation, and it was the considera- “Whilst in England these courts, as we shall tion of this deficiency which prompted me to afterwards see, owe their ostensible birth to a make the first step toward supplying it by a se- sudden and fortuitous introduction of foreign lection of such modern and approved prece- usages and principles of law; on the continent, dents as would embody and elucidate the gene- they had been the gradual and spontaneous ral principles of ecclesiastical practice.

product of opinions deducible from and con"The peculiarity, therefore, which I claim nected with the dogmas and traditional pracfor the following pages will, I trust, assist to tices of the Christian religion itself. The excuse the faults which will be found in them, church, as a governing power, possessed, siand suggest to the candid reader, who is not multaneously with the authority of inflicting a ignorant of the difficulties which attend the private penance for the more secret offences of adoption of a new method, an indulgence for a minor grade, a corresponding jurisdiction to any imperfection of information, or crudeness impose a public admonition and censure on of remark, which the scrutiny of a critic may offenders of a glaring and scandalous characdetect.

ter; and to the exercise of the latter of these " In making the assertion, however, that the powers we owe the criminal processes of the method which I have pursued forms the peculi- church pro salute animæ, or for the reformation arity of these pages, I mean only to express of moral excesses. In the same manner, the that no complete or general compilation on this circumstance of marriage being regarded in the subject has yet been submitted to the judgment light of a sacrament or sacramental rite, necesof the public.

sarily placed it, together with all circumstances “ In the lucid and excellent sections on connected therewith, entirely under the control Practice which have appeared in the new edi. of the church. tion of Burn's "Treatise on the Ecclesiastical

" This jurisdiction being, therefore, native Law,' by Dr. Robert Phillimore, the same plan and inherent, received at the hands of Theohas been followed; though, owing to the range dosius no more than a general confirmation of the work being too wide to allow the ampli- and support. But from the simple text of the fication of any single department, they are ne- Codex Theodosianus, by which the bishops are cessarily on a small and limited scale. If the pronounced to be the proper judges in all cases, learned and talented Editor had extended his quoties de religione agitur,' the Ecclesiastical plan so as to embrace all the phases of practice Jurisdiction received a liberal amplification in discernible in the Ecclesiastical Courts, there succeeding ages, through the voluntary conwould have been no necessity for the present cessions of the civil government ; for the church compilation, and I should have unhesitatingly subsequently acquired a complete power of adsuppressed the materials which I had collected judication, not only over the conduct of clerks, for it."

its own revenues, and marriages, but also over There is a very ample introduction, oc- the breach of faith in sworn compacts or pro

the accessory questions of dower and alimony, cupying upwards of a hundred pages, il mises, the validity or invalidity of last wills, the which the author treats very learnedly and enforcement of legacies, and the administration historically of the jurisdiction of the courts; of a deceased person's property.

Review: Coote's Practice, &c.Proposed Investment of Trust Monies. 369 "This was the condition of the continental stated. Next come the description of Ecclesiastical Courts at the epoch of the acces- criminal suits against laymen and clerks, sion of the Norman conqueror to the throne of and the citations, articles, mode of taking England; and they had already excited the evidence, sentence, &c. jealousy and awakened the late repentance of the secular authorities, with whose jurisdiction

In treating of civil suits, Mr. Coote, Ist, they on many occasions clashed and were suc.

takes ecclesiastical causes, viz., defamation, cessfully competed. In the words of a great with the citation, proxies, libel, and eviFrench antiquary describing their state at the dence, the sentence, penance, &c.; 2nd, time-Curiæ Christianitatis amplissima fuit perturbation of seat in a parish church, the jurisdictio, cum questionum et causarum om- citation, libel, &c.; 3rd, subtraction of nium quæ non modo res ecclesiæ sed et sacra- church-rate ; 4th, suits to recover penalties menta, et quidquid ex eis dubietatis oriretur, for non residence under 1 & 2 Vict. c. 106 ; spectant, cognitionem sibi arrogâsset.'

“Nothing of this kind was to be seen in 5th, grant of faculty. England, at the time of the Norman conquest.

Matrimonial causes are then treated of: The Anglo-Saxon common law never recog- 1st, divorce for adultery, including alimony, pised the principle of a separate civil or criminal pendente lite ; 2nd, divorce for cruelty; jurisdiction, as exercised by the church, though, 3rd, jactitation of marriage ; 4th, restitueither out of respect to the sacred character of tion of conjugal rights; 5th, nullity of its members or from a sense of their superior marriage by reason of impotence; 6th, mitted the Episcopal order to a participation in nullity by reason of former marriage; 7th, the municipal judicature of the country. For nullity by reason of insanity or imbecility; ever since the introduction of Christianity into 8th, nullity of marriage under 4 Geo. 4, England, the bishops had sat to hear causes in c. 76. the county court, in conjunction with the eal- Mr. Coote next treats of Testamentary dorman or his sheriff.”

causes:-1st, the course of proceeding The divisions of Ecclesiastical Jurisdic- therein ; 2nd, subtraction of legacy; 3rd, tion are thus stated :

interest causes ; 4th, inventory and ac

count; 5th, distribution of intestate's per"As regards the scheme of Ecclesiastical Jurisdiction, England is separated into the two

sonal estate ; 6th, suit to permit a bond to provinces of the Archbishops of Canterbury

be sued on ; 7th, citation to accept or reand York, and these again, for the purposes fuse probate or letters of administration, of immediate control, are subdivided into the The general practice is then stated, comdioceses of the respective bishops of the Es- prising letters of request and service, forms tablished Church. In addition to the latter, of answers, mode of compelling the attendthere are also the jurisdictions of the deans and

ance of witnesses, forms of interrogatories chapters of the cathedral churches, and of the and taking evidence, commissions to exarchdeacons, besides the peculiars, which admit of no regular classification. The matter of amine witnesses, publication of depositions, the Ecclesiastical Jurisdiction, which is the &c. subject of this compilation, belongs, in all its The compulsory execution of sentences branches, in the first instance, to the consistorial and proceedings in contempt are next set courts of the archbishops and bishops. The forth; and lastly the author treats of Prerogative Court of the Archbishop of Canterbury is confined to the testamentary questions

Appeals. of the province, and the Arches' Court of Canterbury is only appellate.

PROPOSED INVESTMENT OF TRUST “The courts of the deans and chapters have MONIES WITHOUT THE AID OF exclusive jurisdiction over matrimonial suits

COUNSEL AND SOLICITORS. arising within their precinct, but now interfere with little else.

“ From the Arches and Prerogative Courts Amongst the projects of the late session, of Canterbury, as also from the corresponding a bill was introduced, bearing the names of courts of the province of York, the appeal lies Mr. Hope, Lord Courtenay, and Mr. to her Majesty the Queen in council.

Walpole, to facilitate the Investment of Mr. Coote then describes the proceed- Trust Monies in the Improvement of Land. ings in criminal suits against clerks, under It recited that the 3 & 4 Vict. c. 86: Ist, by commission of inquiry ; and 2ndly, by letters of request be given for the permanent improvement of

It is expedient that further facilities should to the Arches Court. The notices, articles, land: And that there may be now or heremode of proceeding, and forms are fully after in the hands or standing to the account of

the trustees of settlement, will or codicil, Ducange, sub voc. Curiæ Christianitatis.” monies produced by the sale or received for 370 Proposed Investment of Trust Monies. Public Record Buildings on Rolls' Estate. equality of exchange of settled landed estates such sums have been properly expended, and under a power of sale or exchange, or under upon the report being duly filed according to trusts for sale in such settlement, will or codicil the practice of the court, then it shall be lawful contained, or stocks or securities purchased for the court, without requiring the attendance with such monies, and which monies are liable of any counsel or solicitor, to make an order to to be laid out in the purchase of other lands, to confirm such report; and thereupon the trusbe settled to the same or the like uses, or upon tees, guardians or committees concerned, shall and for the same or the like trusts and purposes be for ever fully released from all liability or as the estates from the sale or exchange of responsibility on account of or concerning the which such monies were produced, and there application of any such sums. may be now or hereafter in the hands or standing to the account of the trustees of a settle

b 06

Although this bill was withdrawn, soon ment, will, or codicil, monies the produce of after it was introduced we consider it settled estates sold compulsorily or otherwise, important to call the attention of our for the purposes of a railway or other public readers to its provisions. It concerns the work or undertaking, or other monies, stocks public as well as the profession, and apor securities liable to be laid out or employed pears to be the first occasion (except an in the purchase of lands; and it may happen abortion one of Lord Brougham) on which that the said monies, stocks or securities respectively may be advantageously laid out or an attempt has been made expressly to employed in the permanent improvement of supersede the services of counsel and solands remaining unsold or in settlement: And licitors and let in the evil of unqualified that there may be now or hereafter in the hands practitioners, which it has hitherto been or standing to the account of trustees or guar- the object of the legislature to exclude. It dians for infants or others under legal disability, is manifest that the persons who would put or in the hands or standing to the account of this act into operation could not do it themthe committees of persons of unsound mind, monies, stocks or securities, which may be ad- selves; they must employ some agent to vantageously laid out or employed in the per- assist them, who, under the promise of manent improvement of the lands of such in-charging less than a solicitor, would lead fants, persons of unsound mind, or others them into difficulties and generally into under legal disability. It was then proposed greater expense. by the bill, that trustees (with the consent of Here is another instance of the introducany person beneficially interested in possession, tion into parliament of pernicious measures if of full age), guardians, or committees, might just at the close of the session. In this case apply to the Court of Chancery, by petition pray; it was promptly stopped, but there ought to ing that they may be authorized to lay out and expend money in the permanent improvement be a standing order that no law bill should of any land vested in or intrusted to them to be be brought in later than the first week after advanced out of any such trust monies, stocks Easter, without the special leave of both or securities.

houses. And that, upon the presentation of any such petition as aforesaid, it shall be lawful PUBLIC RECORD BUILDINGS ON for the said court, without requiring the THE ROLLS' ESTATE, attendance of any counsel or solicitor, to refer it to one of the Masters of the said court to make all necessary

The Sixth Report of the Commissioners

and quiries, and to consider all such evidence for the Improvement of the Metropolis has

, estimates, and valuations as shall be pro- that the government have determined to

just been published, from which it appears duced before him in relation to the matter build the various depositories, rooms, and of such petition, and to report whether in offices required for the safety of the invaluhis opinion it will be beneficial to all per-able public records of the kingdom. The sons interested that the projected improvements or any part thereof should be made, plans of the building and the site of the and whether the sum or sums of money in

Rolls' estate have been approved by the

Master of the Rolls. the petition mentioned, or any part thereof, should be advanced.

The approaches to this important build

ing will be connected with the general imAfter providing for the confirmation of the provement of the metropolis by a large Master's report, it was then proposed to central avenue from the north side of St. enact, That after any sum shall have been Paul's. The new opening from Piccadilly so advanced such trustees or guardians or committees may apply to the said court, for to Long Acre will be extended to Carey a reference to one of the Masters, to as- Street. That street will be widened, and certain that the same have been properly ex- a new street extended eastward to join the pended ; and upon a report being made that intended improvements in the city. These

proper in

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