direction.

are the sources of expense, and the sub- considered as necessaries to an infant in statu ject of credit, the distinction is wholly in- pupillari. The juries having returned their apposite. In all those instances the arti- verdicts for the plaintiffs in both cases, the cles supplied may be essentially useful, court granted new trials on the ground of misbut the question still remains, whether In Brooker v. Scott,h the Court of Exchethey are suitable to the estate, degree, quer set aside a verdict for the plaintiff, and and condition of the party to whom they entered a nonsuit, in an action brought by a are supplied; and this must depend, not confectioner at Cambridge against an underonly on the quality of the articles, but graduate, for dinners, pastry, and fruit, alon the condition and circumstances of the though the account included some items for infant. In those cases, it is said, the that those might have been used medicinally. soda-water and lozenges, and it was suggested question is for the jury; but it is a ques- The court observed, that if special circumtion for the jury, subject to the control of stances were shown which made those articles the court, as to the manner in which the jury exercise their discretion. This proposition is illustrated by a late case in the Common Pleas, in which the distinction between the functions of a judge and jury in such cases was considered.

by the plaintiff, consisting of eatables, prima facie were not necessaries; whereas, in Peters v. Fleming, the watch-chain and breast pin were not articles which a college supplies, and might or might not be necessaries, according

necessary, it might possibly have varied the case; but in the absence of any explanation, they were bound to act upon the fact, that the defendant was a person having from his college pillari. The case was distinguished from Peters everything necessary for a person in statu puv. Fleming, on the ground that the college The plaintiff was a livery-stable keeper at supplied everything necessary for the table of Oxford, and the defendant an undergraduate a pensioner there, and that the articles supplied of that University, who kept a horse, and occasionally hunted with his father, a gentleman of fortune in Oxfordshire. The action was for the hire of horses and gigs, and Williams, J., who presided at the trial, told the jury that horses and gigs were not necessary for a person circumstanced as the defendant, and that The latest of the reported cases in the plaintiff was not entitled to recover. The which the question as to an infant's liabi jury, however, having returned a verdict for the full amount of the plaintiff's demand, the lity for necessaries arose, was that of ChapCourt of Common Pleas set it aside as per- ple v. Cooper, in which the facts were at verse, and granted a new trial without costs, once peculiar and distressing, and the dealthough it was urged, that if the jury were termination involved the necessity of a bound to act upon the judge's opinion it would deliberate consideration of legal princi avoid circuity to allow the judge at once to ples. enter the verdict as he thought right.

to circumstances.

The plaintiff being an undertaker, by the The principle adopted by the Court of defendant's order conducted the funeral of her Common Pleas, in Harrison v. Fane, was husband, who died in very indigent circumrecently acted upon by the Court of stances. The declaration was in the ordinary Queen's Bench in two cases, nearly form for work and labour, to which the desimilar in their circumstances, and which fendant pleaded infancy, and the replication were disposed of in the same judgment.

In both those cases, the plaintiffs were cooks and confectioners at Oxford, and the defendants undergraduates of that university. The actions were brought for dinners, dessert, and confectionary, supplied for the use of the defendants, and for entertainments given by them to college friends. In each case, the judge who tried the cause left it to the jury to say whether the articles supplied were necessaries suitable to the degree, estate, and condition of the defendant, without expressly pointing out that the items were to be considered with reference to the defendant's position, and without informing the jury that in no case could goods supplied for the entertainment of others be

Harrison v. Fane, 1 Scott, N. S. 287; 1 M. & G. 550, S. C.

8 Wharton v. Mackenzie, and Cripps v. Hills, 1 Dav. & M. 544; 5 Q. B. 606.

stated that the plaintiff's demand was in re-
spect of necessaries. The plaintiff claimed
291. 1s. 6d., but the jury found a verdict for
101.
The case came before the Court of
Exchequer, on a motion to enter a verdict for
the defendant.

On the part of the plaintiff, it was contended that the burial of a deceased husband who has left no property is a necessary, so as to render his infant widow liable for the expenses, upon the same principle that necessaries for an infant's wife, or child,' or servant," had been held necessaries for the infant; whilst, on the other hand, it was argued, that the cases cited were inapplicable, as all those cases proceeded on the ground that what was furnished to the

h 11 Mees. & W. 67.
i 13 Mees. & W. 252.

Turner v. Trisby, 1 Stra. 168.
1 Bac. Max. p. 67.

Hand v. Slaney, 8 Tem. R. 578.

Points in Common Law.-New Statutes.

members of an infant's family was, in fact, furnished to him, and that the rule applied only to cases of a personal necessity or be

nefit.

The judgment of the court was pronounced

417

place the principle upon so intelligible a ground, that less difficulty will arise in its application to subsequent cases.

TIONS IN THE LAW.

ABOLITION OF FEES IN CRIMINAL PRO-
CEEDINGS.

8 & 9 VICT. c. 114.

An act for the Abolition of certain Fees in Criminal Proceedings. [8th Aug. 1845.] WHEREAS an act was passed in the 55 Geo. 3, (c. 50,) intituled "An act for the Abolition of Gaol and other Fees connected with the Gaols in England," and doubts have been entertained as to the extent and meaning of the said act, and it is expedient that the same be explained and amended: Be it declared and enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present parliament assembled, and by the authority of the same,

by Alderson, B., in the term following that in NEW STATUTES EFFECTING ALTERAwhich the case was argued. After disposing of some ingenious suggestions as to the special circumstances under which funeral expenses might become necessaries, from the peculiar situation of the infant, the learned baron proceeded to observe that the question must depend on the general principles by which the validity of an infant's contracts are governed. It was clear that an infant might contract, so as to bind himself, in those cases where it is necessary for him to have the things for which he contracts. The classes of necessaries for which an infant might contract being established, the subject matter and extent of the contract may vary according to the state and condition of the infant himself. But in all these cases it must first be made out that the things furnished are essential to the existence and reasonable advantage and confort of the infant contractor. Thus, articles of mere luxury are always excluded, though luxurious articles of utility are in some cases allowed. So, contracts for charitable assistance to others, though laudable, cannot be binding, because they do not relate to the personal advantage of the infant. It was difficult to say there was any personal advantage necessarily derived to an infant from the mere burial of a deceased person. But there was another consideration materially affecting the defendant's liability. The law permits an infant to make a valid contract of marriage, and necessaries to an infant's wife and lawful children are, in point of law, necessaries to the infant himself. Decent christian burial is a part of a man's own rights; and it was no great extension of the rule to say that it may be classed as a personal advantage, and reasonably necessary to him. If this were so, the decent christian burial of his wife and children is also a personal advantage, and reasonably necessary to an infant, and then the rule of law applied, that he may make a binding contract for it. It seemed to the court to be a legitimate consequence, from the proposition, that the law allowed an infant 2. Certain fees heretofore payable to clerks of to make a valid contract of marriage, that an Assize, &c., out of the county rates to cease.infant husband or parent may contract for the And whereas by the said act it was provided burial of his wife or lawful children, and an that the clerks of assize, clerks of the peace, or infant widow is in a similar situation. As her clerks of the court, and their deputies, should coverture was at an end, she might contract, receive the amount of the fees theretofore payand her infancy was no defence for the reasons able to them respectively, which were abolished already stated. As the ground of this decision by the said act, out of the rates of the county, arose out of the infant's previous contract of district, hundred, riding, or division, or out of marriage, the court observed that it did not the public stock of the city, town corporate, follow that an infant child, or more distant re- cinque port, liberty, franchise, or place of which lation, would be responsible upon a contract they were severally the officers; be it enacted, for the burial of his parent or relative. But, That no such payment shall be made out of any for the reasons already adverted to, the rule such rate or stock, in satisfaction of any of the for a new trial was discharged, and the judg-fees abolished by the said act, to any clerk of ment entered for the plaintiff.

1. Extending the provisions of the recited act respecting the discharge of certain prisoners without payment of fees.-That the provisions of the said act respecting the discharge of certain prisoners without payment of any fee do and shall extend to all persons who now are or hereafter shall be charged with or indicted for any felony, or as an accessory thereto, or with or for any misdemeanor, before any court of criminal jurisdiction in England, against whom no bill of indictment shall be found by the grand jury, or who on his, her, or their trial shall be acquitted, or who shall be discharged by proclamation for want of prosecution; and that it is not and shall not be lawful to demand or take from any such persons any fee for their appearance to the indictment or information, or for allowing them to plead thereto, or for recording their appearance or plea, or for discharging any recognizance taken from any such persons, or any surety or sureties for them.

assize, clerk of the peace, or clerk of the court appointed after the passing of this act, or to

This series of decisions, it is conceived, their or any of their deputies.

418

New Statutes Effecting Alterations in the Law.-Effects of the Small Debts Act.

COMPENSATION FOR LOSS OF FEES.

8 & 9 VICT. c. 78.

An act to provide for the Payment of Compen-
sation Allowances to certain Persons con-

nected with the Courts of Law in England,
for loss of Fees and Emoluments. [4th Aug.
1845.]

act there is a scale of fees given as the charges of the court, but it does not apthe commissioner to award costs to the pear there is any specific power vested in suitor who seeks to obtain benefit under the act, and yet I see a fee for taxing costs

in schedule C.

WHEREAS the lawful fees and emoluments The object of the act is, to give judg of the clerks of dispensations and faculties in ment creditors for small debts a ready and Chancery, the registrar of the Cinque Ports, cheap means to recover them from fraudu the clerks of the petty sessions at Deptford and lent debtors, possessing means of paying Clapham, who respectively held or do now their debts. Suppose the case of a crehold their offices for life, have been either ditor having sued his debtor in an inferior wholly abolished or greatly diminished by the court of record for a debt of 31., and operation of certain acts of parnament, and

advances on account of compensation have having obtained a judgment at the exheretofore been made to some of them out of pense of an outlay to nearly the amount the grants of parliament for civilontingencies: of his debt, the defendant gets out of the And whereas it is reasonable and just that jurisdiction of the court, and pursues his compensation should be permanently allowed business in another place. The creditor to the said persons for the loss which they applies for and obtains a summons from the have sustained, out of the Consolidated Fund District Court of Bankruptcy, and on the of the united kingdom of Great Britain and defendant's appearing, the commissioner Ireland: Be it therefore enacted by the Queen's

dated Fund.-That the Commissioners of her

most excellent Majesty, by and with the advice makes an order for payment of the judg and consent of the Lords spiritual and tempo- ment debt by monthly instalments of 20s. ral, and Commons, in this present parliament each. The plaintiff, in pursuing this assembled, and by the authority of the same, course, is put to as much expense (even Commissioners of her Majesty's Treasury on this low scale of fees) as the amount of to investigate claims of certain officers, and his judgment. The commissioner is applied award compensation to them out of the Consoli-to for costs of the proceedings before him; Majesty's Treasury for the time being shall but as no specific directions are meninvestigate the claims of the said officers retioned in the act of parliament as to the spectively by such means and in such manner costs incurred in the District Bankruptcy as they may think proper; and if any such Court, he declines any adjudication reclaim shall be established to the satisfaction of specting them. the said commissioners, or any three of them, they are hereby authorised and empowered to dule of the act are intended as fees of Now if the fees mentioned in the sche award to the claimant, by warrant under their hands, such compensation by way of annuity court to be paid by the plaintiff, without as they shall, under all the circumstances of the means of obtaining repayment from the case, think him entitled to for the loss the defendant, it is evident that, for small sustained; and such compensation shall com- sums, the act will be a dead letter. No mence in each case at such time as the said creditor would add to his debt by procommissioners shall think proper, and shall be ceedings in this court, and render his issued and paid and be payable out of and be situation still worse, if he had not the charged and chargeable upon the Consolidated Fund of the united kingdom of Great Britain means of obtaining the expense of the and Ireland: Provided always, that an account proceedings to which he is driven by the of such compensation shall be laid before the dishonesty of his debtor. There being a Commons House of Parliament within fourteen fee mentioned in the schedule for taxing days after the date of the warrant, if parliament costs, the inference is, that the commisshall be then assembled, and if not, then sioner is empowered to apportion them on within fourteen days after the meeting of parliament then next following.

DEFECTS OF THE SMALL DEBTS

ACT AS TO COSTS.

IN the "Small Debts Act" there is a very important feature, which in practice will soon present itself. I allude to the question of costs. In the schedule to the

the moderate scale for the protection of
the debtor. If the plaintiff is not entitled
necessity for taxation.
to costs from the defendant, there is no

It is a matter of much interest to the profession to know how to meet all the this (intended to be) very useful act, points that are raised as to the working of which I still consider is left short from not embracing debts of a larger amount.

SCRUTATOR.

Copyhold Enfranchisement.-Selections from Correspondence.

FORMS OF COPYHOLD ENFRAN-
CHISEMENT.

To the Editor of the Legal Observer.

As

SIR, I have perused the letter in your number of the 6th of Sept., signed Civis A., on the subject of the 4th Report of the Copyhold Commissioners. I presume that the terms there stated as given for enfranchisements, are simply those that the parties could obtain, and not those that the commissioners considered in every case to be fair and proper ones. the copyhold act is not compulsory, all that the commissioners can do is (in order to protect remaindermen and others) to fix a minimum price, below which the enfranchisements shall not be made; but so long as the act is voluntary only, the lord may get as much more as he pleases or decline to enfranchise. This will, no doubt, account for the high prices which the lord has in the cases alluded to been able

⚫to obtain.

that enfranchisement should become general, I agree with your correspondent in his wish, but I doubt that this will ever be rapidly consummated, without in some way making the lord understand that unless he will accept fair terms he will be compelled to do so. I think we are now ripe and sufficiently fortified by precedent for taking the step, and I hope to see it taken the next session.

CIVIS B.

SELECTIONS FROM CORRESPON-
DENCE.

To the Editor of the Legal Observer.

RULES OF THE BAR.

PARISH RETAINER.

419

SOLICITORS' COSTS.

Sir,-Should you be able to find space for this letter, I may obtain the opinion of some or one of your correspondents on a question which has occurred to me in practice, as to the liability of parish officers. The case may be put in this form for brevity sake:

-.

A. (an attorney) commenced an action against B. for trespass, to certain lands belonging to the parish of R- Atavestry meeting of the parish of R, it was resolved A. should take legal steps against B. In Thompson's Practical Suggestions, 2nd ed., it is said to be a settled succeeding years cannot be charged with debts rule of law, that the inhabitants of a parish in due from the parish in preceding years, and that wardens and overseers by name, and make the the only course to adopt is to charge the churchapplication to them payment.

66 as individuals" for

has not been transacted in one year; and if Mr.
In the present case the whole of the business
of his bill.
Thompson has correctly stated the law, I do
not see the attorney's remedy for the amount

Inhabitants voting at a vestry incur no separate or individual responsibility for anything which may be done in pursuance of a resolution of vestry, so signed by them. (Burn's Jus. 29th ed.-Vestries.) Then the question remains thus:-Are the churchwardens and overseers who, with the consent of the minister, call a vestry meeting to consider on parish affairs, liable, either during or after the expiration of their office, to an attorney who has been employed in pursuance of one of the resolutions of such vestry?

A SUBSCRIBER.

JUDGESHIP OF THE WESTMINSTER COURT
OF REQUESTS.

SIR,-A counsel advises his client to take certain steps and proceedings; which the client acting under that advice does. A dispute then MR. EDITOR,-In your number of the 6th arises between the client and his own solicitor, September you noticed the result of the late (to whom he was recommended by the counsel,) election of judge of the Westminster Court of respecting a sum of money belonging to the Requests, in the appointment of a barrister to client in the hands of the solicitor, and which that office. There were, as you remarked, the solicitor admitted to be due to the client, several attorneys who were competitiors; one but which he had refused to pay over, saying of whom was next to the successful candidate that he was poor, and begging time for pay- in the number of votes. I regret very much, ment. After a lapse of time the client being unable to obtain payment, instituted proceedings against the solicitor, and the solicitor files a bill against the client, and which bill is drawn and signed by the counsel above mentioned, disclosing all the proceedings which he had advised the client to take. The bill was protected from a demurrer by statements which the party making then knew to be unfounded, the object of the bill being to show that the money in the hands of the solicitor, although received by him from the client, in truth belonged to other persons. Perhaps some of your correspondents can inform me whether the conduct of the counsel is consistent with the rules of the bar.

A SUBSCRIBER.

as an attorney, the result of this election; for the legislature having thrown open the appointment to attorneys as well as barristers, an opportunity has been lost to our branch of the profession to obtain a judicial office, which could not but have added to its credit and weight in the estimation of the public. There are very few such appointments, if any, open to attorneys; some which they formerly could hold, as commissionerships in bankruptcy, have been transferred exclusively to members of the bar.

My object in addressing you is to draw the attention of the profession to the error which has been committed by attorneys in not having made every effort to secure the appointment to their branch of the legal profession, and thus

95. An act to authorize an extension of the way."