Law of Costs.-The Punishment of Death.

"Upon the whole, the unexplained delay in the payment of the legacies and general winding-up of the estate are sufficient to entitle the plaintiffs to the decree they ask, that the executors shall pay the costs of the suit. Circumstances may frequently occasion great delay in the administration of an estate, but where they occur the executors are bound to state them to the court.

"Reference has been made to a case before Lord Cottenham (Stiles v. Guy, 1 M. and G. 431), where that learned judge treated of the obligation on executors and trustees to pay reasonable attention to the discharge of the duties they undertake by acceptance of their office, and held one executor liable for the default of his co-executor. Here both executors are equally culpable and negligent, so that this case is free from any question of the liability of one executor to answer for the misconduct of the other. It is said, indeed, at the bar that one of them has recently become insolvent, but it is the right of the plaintiffs to have a decree against both executors. I think I am able, on the evidence before me (neither party insisting on a decree for an account), to make a decree that will meet the exigencies of the case, and I shall direct the executors to pay the whole costs of the suit up to the hearing."

Tickner v. Smith, 3 Smale and G. 42.


THE recent discussions on the punishment of death, and particularly the report of the select committee of the House of Lords on that subject,* induce us to submit to our readers some extracts from Mr. Amos's learned work, quaintly called "The Ruins of Time," exemplified in Sir Matthew Hale's "History of the Pleas of the Crown." He says:

"The History of the Pleas of the Crown' may be said to be written, like the laws of Draco, not with ink, but in blood. The penalties for every offence stated in it, with a few insignificant exceptions, are the gibbet, the axe, the flaming stake, or the disembowelling knife. Sir M. Hale states, indeed, a sound principle of jurisprudence, that the 'inflicting of punishments is more for example, and to prevent evils, than to punish:' but he mixes some

leaven with this wholesome doctrine, adding, only in the case of murder there seems to be a justice of retaliation, if not ex lege naturali, yet at least by a general divine law given to all mankind. Gen. ix., 6.' And concerning theft, which he afterwards informs us was punishable with death if the property stolen exceeded in value twelvepence, he writes, 'Although many of the schoolmen and canonists are of opinion that death ought not to be inflicted for theft, yet the necessity of the peace and well ordering of the kingdom hath in all ages and almost all countries prevailed against that opinion, and annexed death as the punishment of theft, when the offence hath grown very common, and been accompanied with enormous circumstances.' To the schoolmen and canonists Sir M. Hale might have added Sir T. More, who, in his 'Utopia,' thought that in the punishment of theft with death, England and a great part of the world imitated some ill masters, who were readier to chastise their scholars than to teach them.

"Retaliation, in the case of alleged murder, had

*See p. 301, ante.

been advocated, in language shocking to read, in Sir M. Hale's presence, when he sat as commissioner for the trials of the regicides. Sir Orlando Bridgman, in his charge to the grand jury, said, 'You are now to inquire of blood, of royal blood, of sacred blood, blood like that of the saints under the altar, crying Quousque Domine! This blood cries for vengeance, and will not be appeased without a bloody sacrifice.' And, in the same vindictive spirit, the dead bodies of Cromwell, Bradshaw, and Ireton were taken out of their coffins, drawn on sledges to Tyburn, and there hanged till sunset; they were then beheaded, and their heads set upon poles at the top of Westminster Hall.

"The supposed 'justice of retaliation' in cases of murder was a principle of the Roman law, according to which the bodies of murderers were permitted to remain on the gibbet, after execution, ut et conspectu deterreantur alii, et solatio sit cognatis interemptorum.' In the reign of George II., and the year 1741, one Hall pleaded guilty to a charge of petty treason, for murdering his master, John Penney. The Rev. Dr. Penney, Dean of Lichfield, brother of the deceased, applied to the Regency, the King being then at Hanover, that Hall might be hanged in chains. The council at first demurred, on the ground of want of jurisdiction; but, upon Dr. Penney sending for his friends, the Archbishop of Canterbury and the Duke of Newcastle, out of the council-room, and satisfying them upon the point of jurisdiction, they obtained for him an order of the regency for hanging Hall in chains, which recited that it had been granted' on the petition of the relations of the deceased.""

On the subject of benefit of clergy, Mr. Amos observes :

"When it was ascertained that an offence was clergyable, a perversion of justice ensued, which nothing but long habituation could have restrained Sir M. Hale from reprobating. A clergyman was thereby exempt from capital punishment toties quoties, as often as from acquired habit, or otherwise, he repeated the same species of offence; the laity, provided they could read, were exempted only for a first offence; for a second, though of an entirely different nature, they were hanged. Among the laity, however, there was this distinction, peers and reading, or any punishment at all; commoners, if peeresses were discharged for their first fault without of the male sex and readers, were branded in the


Women commoners had no benefit of clergy. It occasionally happened in offence committed jointly by a man and a woman, that the law of gavelkind was parodied

The woman to the bough,
The man to the plough.*

Regarding the effect of public executions on the mind of criminals, Mr. Amos says:

"The infliction of death, that last melancholy

"Kelyng reports:-At the Lent assizes for Winchester (18 Car. II.) the clerk appointed by the bishop to give clergy to the prisoners, being to give it to an old thief, I directed him to deal clearly with me, and not to say legit in case he could not read; and thereupon he delivered the book to him, and I perceived the prisoner never looked on the book at all; and yet the bishop's clerk, upon the demand of legit? or non legit?' answered legit.' And, thereupon, I told him I doubted he was mistaken, and had the question again put to him; whereupon he answered again, something angrily, legit.' Then I bid the clerk of assize not to record it, and I told the parson that he was not the judge whether the culprit could read or no, but a ministerial officer to make a true report to the court, and so I caused the pri

The Punishment of Death.-Michaelmas Term Examinations.

resource of jurisprudence a reluctance to sanction which is a sure indication of the progress of civilisation in a country, may be considered to have some peculiar advantages. It may be supposed more effectual than any secondary punishment in deterring from guilt, by reason of its appalling example. This is doubtless, its operation on many minds, but it has been shown by the evidence of persons peculiarly conversant with the habits and modes of thinking among the criminal classes of society, that the vicious part of the community are not materially influenced by the terrors of the scaffold. Mr. Harmer, the celebrated gaol solicitor stated, in his evidence before the Criminal Law Commissioners, that, 'In the course of my experience I have found that the punishment of death has no terror on a common thief. I have very often heard thieves express their great dislike of being sent to the house of correction or the hulks, but I never heard one say that he was afraid of being hanged."

And, further on, we have the following historical remarks.-



house in Kent-street, in which they had committed a robbery. The royal prerogative of mercy was exchanged for the painful one of selecting victims for the scaffold.

"Within the last century, however, it was found that, in most instances, capital punishments failed to produce the only effect that could justify their infliction. Our criminal laws lost their terror in the minds of the virtuous. There came to be acknowledged two criminal codes, one in the statute book, and another in practice. Prosecutors preferred to abide without remedy, rather than seek one tainted with blood. The bleachers petitioned Parliament to protect them by withdrawing the capital punishment of stealing from bleaching grounds. Whether actuated by the dictates of humanity or a timid apprehension of responsibility in any matter of life and death, or from both motives, the perjury of witnesses and jurors in capital cases became so privileged and applauded, that Blackstone calls them 'pious perjuries; thus, as Sir S. Romilly observes, 'looking upon the evasion of our criminal laws with so much

favour, as to regard the profanation of the name of God in the very act of administering justice to men. as that which is in some degree acceptable to the

Almighty, and as partaking of the nature of a reliduty.'

“A very practical view of the subject of capital punishments is, that under a popular tribunal as a jury, they cannot be enforced, when, in public opinion, they are deemed unnecessary, or dispropor-gious tioned to crimes; thus verifying the reflection of Lord Bacon, that, 66 any over-great penalty, besides the acerbity of it, deadens the execution of the law." In the time of Blackstone there were a hundred and sixty capital felonies, and this number was afterwards largely augmented. It is mentioned in the evidence of Townsend, the Bow-street officer, before the police committee, that about the year 1780, and few subsequent years, there were never less than twelve culprits executed together after every Old Baily Sessions; he remembered a sessions of 1783, when Sergeant Adair was recorder, after which forty convicts were hanged at two executions.†

"Chief Justice Eyre seems in this respect of hanging to have merited the soubriquet given to a French judge of coupe-tête-for, at Hertford, the first assize town upon the Home Circuit, he told the grand jury to be careful what bills they found, for it was his intention, during the circuit, to leave for execution every person convicted of a capital offence. He kept

his word, and spared no one; by one of his orders four men and three women were hanged opposite a

soner to be brought near, and delivered him the book, when he confessed that he could not read. Whereupon I told the parson that he had unpreached more that day than he could preach up again in many days, and I fined him five marks. An instance of humanity is mentioned by Donne, of a culprit convicted of a non-clergyable offence prompting a convict for a clergyable one in reading his neck-verse. In the very curious collection of prolegomena to Coryat's Crudities are commendatory lines by Inigo Jones, whose fame was in building palaces and churches, and not the 'lofty rhyme.' The famous architect wrote

Whoever on this book with scorn would look, May he at sessions crave, and want his book.'" "In the present day, Lord Bacon would, probably, not have inscribed among his apophthegms the following anecdote of his father:-Sir Nicholas Bacon, being appointed a judge for the Northern Circuit, and having brought his trials that came before him to such a pass, as the passing of sentence on malefactors, he was by one of the malefactors mightily importuned for to save his life; which, when nothing he had said did avail, he at length desired his mercy on account of kindred. 'Prithee,' said my lord judge, how came that in? Why, if it please you, my lord, your name is Bacon, and mine is Hog, and in all ages, Hog and Bacon have been so near kindred, that they are not to be separated.' 'Ay, but,' replied Judge Bacon, 'you and I cannot be kindred except you be hanged; for Hog is not Bacon until it be well hanged.'

"Were the History of the Pleas of the Crown' to be read in the present day, as detailing a true narrative of existing law, and being, what in the time of Charles II. it really was, a practical handbook to the gibbet, its denunciations would, for the most part, meet with no jury to put them in force; and its sanguinary pages would be regarded by society as promulgating the abhorred edicts of a legislature of fiends.


THE Examiners have appointed to take the examination of persons applying to be admitted attorneys on Wednesday, 12th November, at half-past nine in the forenoon, at the Hall of the Incorporated Law Society in Chancery-lane. The examination will commence at ten o'clock precisely.

The articles of clerkship and assignment, if any, with answers to the questions as to due service, according to the regulations approved by the judges, must be left at the Office of the Law Society, on or before Saturday, the 8th of November.

Where the articles have not expired, but will expire during the term, the candidate may be examined conditionally; but the articles must be left within the first seven days of term, and answers up to that time. If part of the term has been served with a barrister, special pleader, or London agent, answers to the questions must be obtained from them, as to the time served with each respectively.

A paper of questions will be delivered to each candidate, containing questions to be answered in writing, classed under the several heads of-1. Preliminary; 2. Common and Statute Law, and Practice of the Courts; 3. Conveyancing; 4. Equity, and Practice of the Courts; 5. Bankruptcy, and Practice of the Courts; 6. Criminal Law, and Proceedings before Justices of the Peace.

Each candidate is required to answer all the preliminary questions (No. 1); and also to answer in three of the other heads of inquiry, viz.: Common Law, Conveyancing, and Equity.

The examiners will continue the practice of pro

Notes of the Week.-Recent Decisions: Lords Justices; Master of the Rolls.

438 posing questions in Bankruptcy and in Criminal Law and Proceedings before Justices of the Peace, in order that Candidates who may have given their attention to these subjects, may have the advantage of answering such questions, and having the correctness of their answers in those departments taken into consideration in summing up the merit of their general examination.

Under the new rules of Hilary Term, 1853, it is provided that every person who shall have given notices of examination and admission, and "who shall not have attended to be examined, or not have passed the examination, or not have been admitted, may within ONE WEEK after the end of the term for which such notices were given renew the notices for examination or admission for the then next ensuing term, and so from time to time as he shall think proper; but shall not be admitted until the last day of the term, unless otherwise ordered. This rule has been made in order to avoid the practice of giving double notices.



IT is ordered by her Majesty in Council that the Parliament, which stands prorogued to Thursday, the

13th November, be further prorogued to Tuesday, the 16th December.


The number of candidates for examination in the ensuing term is very large. Including several who have given notice of examination and not of admission, there would be, if all attended, upwards of 160; but, as usual, a large proportion for various reasons will probably postpone their applications.

As our readers are aware, prizes are to be given out of the funds of the Incorporated Law Society to three candidates whom the examiners may report to be entitled to honorary distinction. They must be under the age of twenty-six. We hear that an objection has been made to this limitation; but understand that the reward is designed to encourage the younger class of articled clerks in a careful study of the law; and it would scarcely be a fair competition between a student of the age of twenty-one and a clerk who had the advantage of many years' experience in a solicitor's office. The masters of the several courts, who are ex officio examiners, concur in opinion with their associates, the members of the council of the Incorporated Law Society, in the We understand arrangement which has been made. that a memorial is about to be submitted on this subject to throw open the competition.


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A fund was settled in default of children who being sons should die under the age of 21 or being daughters under that age and unmarried, and upon the death of the wife in the lifetime of her husband, for such person or persons as would have been entitled to the wife's personal estate under the statutes of distributions as if she had died unmarried and intestate: Held, upon the death of the wife before her husband, leaving a daughter who afterwards died under 21, and confirming the decision of the Master of the Rolls, that the husband who had administered to his daughter's estate was entitled as against the wife's brothers and sisters.

THIS was an appeal from the the decision of the Master of the Rolls on this special case under the 13 & 14 Vict. c. 35, as to the construction of the marriage settlement of the plaintiff and his wife, whereby a sum of £1,000 was settled upon certain trusts and (inter alia), ultimately upon trust in default of children who being sons should die under the age of twenty-one, or being daughters under that age and unmarried, and on the death of the wife in the lifetime of the plaintiff, for such person or persons as would have been entitled to the wife's personal estate under the statutes of distribution, "if she had

died unmarried and intestate." It appeared that the wife died leaving the plaintiff surviving and a daughter who subsequently died under twenty-one. The plaintiff administered to the child's estate, and claimed the fund as against the wife's brothers and sisters. The Master of the Rolls having held that he was entitled, this appeal was presented.

Cairns and Archibald Smith in support; Lloyd and Hanson contrà; Shapter, Karslake, and Fischer for other parties.

The Lords Justices said that the child was entitled to the fund absolutely, and the plaintiff took as administrator.

Master of the Rolls.

Green v. Lowe. June 25, 1856.


By an agreement the defendant agreed, on the completion of certain buildings by the plaintiff, to grant a lease for ninety-nine years at a certain rent, and which was to contain certain stipulations and covenants, including one to insure in the County Fire Office, or in some other office, to be approved of by the defendant in the joint names of himself and the plaintiff; and it was also agreed that the defendant would, if required by the plaintiff within two years, sell the fee simple for £500, but provided such option should determine at the end of six months from such two years. The plaintiff completed the building, but

Analytical Digest of Cases: Common Law Appeals.

omitted to insure in the joint names, and the defendant brought ejectment. The plaintiff then gave notice to purchase the fee simple, and tendered the agreed amount: Held, that he was entitled to a decree for a specific performance.

THIS was a suit for the specific performance of an agreement dated in December, 1854, whereby the defendant agreed, upon the completion of certain buildings by the plaintiff, to grant a lease of the ground for ninety-nine years at a rent of £25, and which was to contain certain stipulations and covenants, including a covenant to insure in the County Fire Office, or in some other office to be approved by the defendant, in the joint names of himself and the plaintiff; and it was also agreed that the defendant would, if required by the plaintiff so to do within two years from the date of the agreement, sell the fee simple for £500, but provided that such option of


purchase should determine at the end of six months after the expiration of such 'two years. It appeared that the plaintiff duly completed the premises, but that he insured the same in the Royal Exchange Fire Office in his sole name, and that the defendant in April, 1856, brought ejectment to recover the premises, whereupon the plaintiff, by letter, stated his intention to purchase the fee simple, and tendered the arrears of rent and the stipulated sum of £500. The defendant refused to complete, and this bill was filed.

Lloyd and Smythe for the plaintiff; Southgate for the defendant.

The Master of the Rolls said that the plaintiff was entitled to a specific performance, leaving the defendant to recover any damages to which he might be entitled in respect of the breach of the agreement as to the insurance.



Common Law Appeals.


See Conviction, p. 424.


See Charterparty, 2, p. 423.


Execution of, by bailiff's assistant, in bailiff's absence-Payment by judgment debtor-Sheriff-The bailiff, to whom the sheriff had given his warrant to execute a fi. fa., sent a bailiff's assistant to execute it in the bailiff's absence, which was done.

Held, in the Exchequer Chamber, on a bill of exceptions, that a ruling of the judge at the trial that the sheriff was answerable for this act, as being done by colour of the warrant, was correct.

The judgment debtor paid the amount at the office of the bailiff, who held the warrant, in the absence of the bailiff, to an assistant of the bailiff, authorized by the bailiff to receive the money. This assistant did not pay it over to the bailiff'; and the sheriff never in fact received the money.

Held, in the Exchequer Chamber, on a bill of exceptions, that a ruling of the judge at the trial that a payment under such circumstances was good as against the sheriff, and satisfied the writ, was correct. -Gregory v. Cotterell, 5 E. and B. 571.

See Lessee, 2.



See Bankrupt, p. 423.


See Charterparty, 1, p. 423.


In writing as to credit and circumstances of third person.-Held, overruling exceptions to the ruling of Crowder, J., that an action will lie for a false repre

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1. Indemnity of, by lessor after expiration of term against distress by Ecclesiastical Commissioners for tithe commutation rent-charge in arrear.-Declaration alleged that plaintiff was tenant of a farm to defendant for a term of years, after the expiration of which there became due and payable from defendant to the Ecclesiastical Commissioners money in respect of a tithe commutation rent charged on the farm and land, which said farm and land were liable to the payment of the rent, as defendant knew; that defendant having neglected to pay it, the commissioners, according to the provisions of the statute (6 & 7 W. 4, c. 71), distrained for it a stack of wheat of plaintiff, then lawfully being on the farm and land, and afterwards sold it, in satisfaction of the sum in arrear, costs, and charges; and plaintiff was deprived of the stack; yet defendant, though he had notice of these several matters, and was requested by plaintiff to indemnify him, had not indemnified him.

Held, by the Exchequer Chamber, that the declaration showed no cause of action, the facts stated creating no liability on the part of defendant to indemnify plaintiff. Griffinhoofe v. Daubuz, 5 Ellis

and B. 746.

2. Right to tenant's and trade fixtures of publichouse-Covenant to deliver up fixtures and articles in nature of fixtures - Underlease. By indenture C.



Analytical Digest of Cases: Common Law Appeals.

demised to E. an unfinished messuage for the term of ninety-seven years. The indenture contained a covenant by E. that at the expiration of the term he would deliver up the demised premises to C., together with all locks, keys, bars, bolts, marble and other chimney-pieces, footpaces, slabs, and other fixtures and articles in the nature of fixtures, which shall at any time during the said term be fixed or fastened to the said demised premises, or be thereto belonging." E. took possession of and completed the messuage, and fitted it up with things necessary for carrying on the business of a tavern-keeper and licensed victualler; and for that purpose put in the premises certain fixtures of the description called and known as trade and tenant's fixtures. B. afterwards contracted with E. to purchase from him an underlease of the premises and the goodwill, and also the furniture, fixtures, stock in trade, &c., at a valuation. In pursuance of this contract, E. executed to B. an underlease, which contained a covenant on the part of the defendant in the same words as the above covenant by E. in his lease.

Held, on error, that the covenant above set forth did not restrain B., the lessee, from disposing either of the tenant's or of the trade fixtures. Bishop v. Elliott, 11 Exch. 113.

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Registration of chemists and druggists.-Under the Pharmaceutical Society's Act, 15 & 16 Vict. c. 56, persons who, either before 18th Feb. 1843, the date of the charter (recited and in part confirmed in the act) or after that day, and before 30th June, 1852, when the act passed, were established in business on their own account as chemists and druggists, and upon a certificate of such fact, and of their qualification to be admitted members of the society, were, according to the bye-laws passed before the charter and after the act elected members of the society, are entitled to be registered as pharmaceutical chemists under the act, though they have not passed the examination prescribed in the act, and though they were not members of the society before the passing of the act.

So held by the Court of Exchequer Chamber, affirming the judgment of the Court of Queen's Bench. Regina v. Registrar of Pharmaceutical Society, 5 Ellis and B. 138, 160.

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against one due afterwards-Action by administrator. -To an action by an administrator who sues in his representative character for a debt due after the death of the intestate, the defendant cannot set-off a debt due to him from the intestate in his lifetime. So held in the Exchequer Chamber, affirming the judgment of the Court of Exchequer. Rees v. Watts, 11 Exch. 410.


See Bankrupt, p. 423.

See Fi. fa.



Repairs to, ordered by master in London, owner being at Liverpool.-Action for goods sold and delivered, work, labour, and materials. Plea, never indebted. Plaintiff proved that he supplied the goods and did the work to fit out the ship P., then in London in dock. That the orders were given by T., who appeared on the register as master, and that defendant appeared on the register as owner. Some evidence was given from which it might be inferred that T. was appointed by defendant. Defendant proved that he had agreed to sell the P. to one G., that T. was appointed master by G., and gave the orders for G., and that defendant afterwards resumed possession of the vessel.

The judge directed the jury that if T. acted as master with defendant's privity and consent, and the goods were bonâ fide supplied on the credit of the owner, defendant was liable; and that, though defendant's evidence was believed, he was not conclusively entitled to a verdict. On a bill of exceptions, Held, that defendant was not liable for the goods ordered by T., unless he had sanctioned T.'s appearing to be his captain acting for him, and the goods were supplied on the faith of T.'s being so; and, consequently, that the direction was wrong.

Quare, whether the prima facie authority of the captain of a ship in dock in London extends to order repairs, the owner being no farther distant than Liverpool? Mitcheson v. Oliver, 5 Ellis and B. 419. And see Charterparty; Consignee.

See Lessee, 2.



See Ejectment, p. 424.


Contract for sale of iron in tons " long weight "Local weight.-A contract for the sale of a certain number of tons of iron "long weight" is not in contravention of the statutes & 6 Will. 4, c. 63, and 5 Geo. 4, c, 74, and consequently such contract is valid. So held in the Exchequer Chamber (affirming the judgment of the Court of Exchequer).

Semble, that the 15th section of the 5 Geo. 4, c. 74, is not repealed by the 5 & 6 Will. 4, c. 63; and, consequently, that contracts by local weight may be lawfully made, if the proportion to the standard is expressed; though it is otherwise with respect to measures, all local measures being abolished by the 6th section of the 5 & 6 Wm. 4, c. 63. Giles V.

Cannot be set up of debt due in lifetime of intestate Jones, 11 Exch, 393.

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