« PreviousContinue »
Struction upon the words and terms used by the teftator. It is now clearly settled, that the words all his efate, will pass every thing man has : but if the word all is coupled with the word personal, or a local description, there, the gift will pass only personalty, or the specific eltaie particularly described.
• All these principles being clearly settled and certain, the question in this case comes to a question of construction upon the will itself, Now, in this will there are several things which it is material to ob. serve: and first, the introduction is very material. Introductory words cannor vary the construction of a devise, so as to enlarge che estate of a devisee, unless there are words in the devise itself sufficient to carry the degree of interest contended for. But wherever they affift to show the intention of the teftator, the courts have laid hold of them, as they do of every other circumstance in a will, which may help to guide their judgment to the right and true construction of it. The introductory words used by the ceftator in the present care, are not Atriết legal terms; but they are the words of a plain man of sound learning He says, “ As to all my worldly subfiance, I give, &c." What is substance? It is every property a man has. So, in the sta. tuie 4 and
Phil. and Mar. c. 8. for the punishment of such as Thall take away maidens that be inheritars, the word substance is made use of, and means worldly wealth.
• The words of the will before the court are : “ I also give to my mother, all the remainder and residue of all the effeits both real and personal which I shall die poslessed of.”. Now, is the construction of these words to be confined to a gift of perfonalty only? molt clearly not; because the teftator has expressly added the word real to the word effects. Do the words real effe&ts in law, mean real chaitels oni; ? No authority has been produced to thew that they do: and, in point of fa&, there was but one leale belonging to the testator in this case which could come under that description; consequently, if the con, struction contended for by the defendant were the true one, only that lease would país ; which would be to narrow the construction of the word real very much indeed. The natural and true meaning of real effe&ts in common language and speech is real property ; and real and perfonal effe&s are synonymous to substance, which includes every thing which can be corned into money. In several clauses of the bankrupt laws which make it felony in a bankrupt to conceal, remove, or embezzle any part of his goods, wares, merchardize, monies, or effe&s; the word “ effects" is made use of in this fenfe. If that be the true construction, there can be no doubt but that the words remainder of real effeEts include the reversion of every thing not disposed of; in which case, no words of limitation were necelfary:'
Paffing to the other side of Westminster- hall, we are pleased to meet with the valuable Reporis of Cases in Equity, published by Mr. Brown, They begin in Trinity teim 1778, and end with the fittings after Trinity. term 1788: during the 'whole of this period, with the exception of a very short interval, Lord Thurlow has filled the high office of Chancellor of England, with abilities which (according to the unanimous voice of she profesion) have never been surpassed, and seldom equalled. This fa&t makes Mr. Brown's Reports particularly important. The Public, unquestionably, is greatly indebted to him for the publication of them, and will always receive his continuation of them with pleasure.
But... Har Art. XIX. Reports of Cases argued and determined in the High Court of
Chancery, and some special Cases adjudged in the Courc of King's Bench, collected by William Peere Williams, late of Gray's Inn, Esq. The fourth Edition, with additional References to the Proceedings in the Court, and to later Cases. By Samuel Compton Coxe, of Lincoln's Inn, Esq. Royal 8vo. Il. 11s. 6d. bound. Brooke. 1787. IT T is not an exaggeration to say, that this is the best edition,
ever published, of any law-book. The editor has attentively compared every case with the account of it in the register's books, and has pointed out every variation from them that appeared material. He has also taken care to mark every determination con. tained in his author's reports which has been affected, in any respect, by subsequent decisions or discuffions. But what particularly enhances the merit of this edition is, the elaborate, though concise, notes of the editor. These contain statements of the doctrines of the court, on almost every point of equitable learning, lo succinctly, but-so accurately, expressed, and illustrated by references so well chosen and so apposite to the point in question, as to make the work a complete body of equity.Of this, the following note is a specimen :
• The striêt rule is established, that a legacy given by a debtor to his creditor, which is equal or greater than the debt, shall be presumed to he intended in fatisfaction of the debt. Talbot v. Duke of Sbrewsbury, Pre. Cha. 394. Jeffs v. Wood, post. 2 vol. 132. Fowler v. Foreler, post. 3 vol. 353. Reech v. Kennegal, i Vez. 126; but the later cafes, although they acknowledge the general rule to be fully eftablished, yet express a dissatisfaction with the principle upon which it proceeds, and are anxious to collect from the will circumstances to rebut such prefumption. So where the payment of debts is particularly mentioned, as in the present case, and the case of Chancey, and Richardson v. Greese, 3 Atk. 65. Or, where the legacy is not equally beneficial with the debt, in some one particular (although it may be more so in another) as in time of payment, Nicholls v. Judjon, 2 Atk. 300. Clarke v. Sewell, 3 Atk. 96. Matihews v. Matthews, 2 Vez. 635. or in point of certainty. Crompton v. Sale, poft. 2 vol. 555. Barret v. Beckford, 1 Vez. 519.'
We have selected this note for jis shortness, not for its comparative merit. From the specimen which Mr. Coxe has given in this work of his profeffional knowlege, it is to be hoped that he will favour the public with some future publication, on the fubject of legal or equitable learning.
ART. XX. Speculations upon Law and Lawyers ; applicable to the
manifest Hardships, Uncertainty, and abusive Practice of the Common Law. 8vo. pp. 104. Robson and Co. &c. 1788. THESE are the speculations of a man of observation and
enquiry, prejudiced, we conjecture, from the advertisement at the conclusion, by personal injuries, and soarting from the effeas of legal severity. That perfection fhould be found in any human system, we are not sanguine enough to expe&t; nor do we know whether the evils which are here pointed out could be remedied, without introducing mischiefs worse than those that are already experienced. Many of them (we believe most) might be redrefled by applications to the Courts where the abuses are committed, without hazarding experimental innovations, which are always dangerous; and which, in too many cases, however plausible, have been found, when tried, generally ineffe&tual, and sometimes destructive.
It has been often remarked, that a Platonic commonwealth, which a speculatist in his study may delineate, has a beautiful appearance, and would be universally desired; but a practical statesman knows that the visionary system is not to be carried into execution. In like manner, an ingenious man, by selecting all the evils attendant on civil society, by displaying them in the most glaring colours, and omitting every circumstance of advantage, may exbibit such a picture as none but an hypochondriac will for a moment admit to be a faithful representation. In this manner have the law and its professors been treated. Every benefit which is derived from legal inftitutions, has been concealed; while every abuse of them has been magnified, with most malicious industry.
The present author, in his first section, treats on the neceslity of a revisal and abridgment of the law; and in the next, of the astonishing increase of printed law books, fince the beginning of the last century. He is a warm advocate for brevity, and, we presume, its natural consequence,-discretionary powers in the Judges. He observes, that many nations of Europe at this day carry their code in their pocket, with the same ease as we our Common Prayer, or Court and City Register.' We shall not ftay to enquire whether this is a fact or not; but we fincerely hope that this nation will never have the misfortune to be dis rected by such a code. Montesquieu somewhere observes, that the multiplicity of our laws is the price we pay for our liberty ; and he very juftly remarks, from the examples of Cæsar and Oliver Cromwell, that fimplifying the law is generally one of the first acts of a tyrant. Where the Sic volo, fic jubeo of a de(poric monarch are substituted for written laws, conciseness may
be expected; but if all the enormities here charged on the practice of the law were admitted, and were only to be redressed by fuch an abridgment as is here proposed, we do not hesitate to say, that it would very much diminish the security, and tend to infringe the liberty, of the subject ; we should therefore be of opinion that things had better remain as they are.
The author's complaint of the increase of law books, appears to us to have no force. That they have increased, and will further increase, is very certain; but whether they have multiplied in equal proportion to the publications on divinity or phyfic, we greatly doubt. At all events, such as are found worthJess will filently be condemned to oblivion; and those only be deemed necessary for a lawyer's library which poffefs intrinsic merit. We are under no apprehenfions of being over-burdened with too many valuable books on any subject.
In the course of his work, the author discusses--The uncertainty of the law-The Inns of Court-The alarming progress of the grandeur of the law-The impropriety of serious subjects being created lightly at the bar-Oaths, and the manner of administering them. What he here says, is worthy of attention : as are also many of his remarks on the old subject of imprisonment for debt-The ftate of debtors in the United Provinces-Dutcb determinations between debtor and creditor-Inveđives againft attornies-On the Criminal Law-Further thoughts on a revisal and abridgment of the laws, with proposals for a law catechism, and a recommendation that some portions of law should be read in our churches, in lieu of chapters from Leviticus and Deuteronomy.
He concludes with a set of queries, several of which we hall give to our readers. From them, the drift and force of the author's scheme may be collected. They certainly deserve every attention that can be bestowed on them, and will demonstrate that he merits a better fate than that which has condemned him to date his work from the confines of the King's Bench.
QUERIE 5. • Whether common law, confidered in its principles as the great bulwark, may not, in several points alluded to in the foregoing sections, be reckoned the great bane, of the nation?
• Whether a very confiderable part of the dearly-earned property of individuals, acquired by diligence, industry, ingenuity in various arts and manufactures, and other laudable means of living, is not wasted among lawyers, expended in law-offices, and, for the most part, divided among attornies ?
" Whether exactions, under colour of justice (for such are all enor, mous fees and ruinous costs), may not be accounted manifeft injuftice?
• Whether abuse, under colour of law, warranted by long pernicious practice, and winked at by those alone who have the
power of redresling the people's grievances, is not the worst tyranny in the world?
• Whether any known law in Europe is, in its practice, fo grievous, so expensive, so destructive, and fo much abused, as the common law of England?
• Whether å board, or committee of healing and mitigation, between adverse parties, to be composed of neighbouring gentlemen, clergymen, sensible farmers and burghers, might not be appointed in every borough and market-town in the kingdom ; a quorum of which might fit for an hour or two every market-day, and endeavour to reconcile and compose small differences and misunderstandings among neighbours; and thereby prevent vexatious and expensive suits at law: so that those who mer in enmity, might often return to their homes in friendship; to the country's peace, the salvation of families, and utter disappointment of Aeecing attornies?
• Whether, when creditors are inclined to compromise with their debtors, their attornies do not frequently interfere, and defeat such humane intention, upon the meanest confiderations, and the vileft principles ; namely, to encrease costs--well knowing that if the insolvent debtor goes to gaol, the costs mult fall upon the solvent client?
· Whether attornies' costs do not frequently exceed the original debes ?-in many instances, double-in fome, treble-in others, tour, five, fix times as much ?
• Whether bankruptcies are not multiplied by means of the same order of iaw-ministers, and other notorious abuses in practice?
• Whether the labouring poor (the most useful part of the community), the improving mechanic, the necessary handicraft, the ingenious artist, the sober merchant and man of business, the cultivator and improver of the lands of the wealthy, the soldier of his country, and every other class of inhabitants (the lawyer only excepted), have not just cause to curse the abulive practice of the common law ?
• Whether it is reasonable to suppose, that the lawyers themfelves, considered as the most powerful and self-interested body in this nation, will, of themselves, ever effect, or even wilh to effect, a 'thorough reform of the afore-recited abuses ?
" Whether Petitions and Remonftrances to the High Court of Parliament, ought not to be preferred against such glaring abuses, and grievances of greatest magnitude; not only from counties, cities, and boroughs, but from every parish in the kingdom?
Whether it is not the duty of the people's representatives, im, mediately to enquire into, and set about correcting such enormities and infringements upon the rights of the people; in opposition to the united clamour that may be raised againīt is, by all the profeffional lawyers in the kingdom?"
We are sorry that we could not make room for the rest of the author's queries, for they all merit che public attention : though, perhaps, his personal fufferings may bave made himn rather too levere on the law and lawyers. Re-d.