POOL COUNTY COURT.

THIS morning (Monday, the 29th ult.) at the sitting
of the County Court, the case against Mr. Whitty,
the proprietor and editor of the Liverpool Journal,
for an alleged contempt of court, was called on,
when Sir George Stephen appeared on behalf of that
gentleman, but the learned judge decided upon hav-
ing the defendant present in person.

which the community would be subject if judges were not protected, stated that he had uniformly done all in his power to administer justice impartially, and he cared not who the man was that interfered with any officer of the court in the discharge of his duty, he would have him brought before him and heavily fined.

fund. Secondly, in ascertaining the priority of each EXTRAORDINARY SCENE IN THE LIVER- considerable length to animadvert on the evils to particular claim-one of the most tedious and particular duties of the commissioners, and the cause of great delay and litigation. This occurs particularly in cases where the fund is not ample for the payment of all the creditors; but the commissioners have very wisely established the principle of investing the purchase-money, when lodged, whereby the fund is multiplying for the benefit of all the creditors. In some cases where it was utterly impossible for the purchase-money to be allocated till November, the commissioners allowed the purchasers to lodge, say one-half the amount-the other half to be retained by them till November, they paying five per cent. for the same. As an example of the very moderate sum for which an estate can be sold in this court, we may mention the case of Samuel Dopping, owner, which estate was sold, and the amount, 76,2257. distributed for the small sum of 3217. Is. 5d. Another in the matter of Arthur Robinson, owner, sold for 9,2001. the costs of which, including survey, printing rentals, and distribution of the fund amounted to but 1971. 1s. 1ld."

COUNTY COURTS.

Summary.

THE most interesting, and yet the most painful, of the events of the week in the record of these Courts, is the series of extraordinary scenes which have been enacted at Liverpool, by Mr. RAMSHAY, the Judge of that Court, whose name is already unpleasingly familiar to our readers by reason of repeated rebukes which, in the discharge of our duty, we have been from time to time compelled to administer to him for conduct which was undignified, to say the least of it, but which the less charitable designated by a harsher

term.

At the moment, we attributed these ontbreaks of temper to mental infirmity, and it would have been well for himself, and for the Court he has brought into such disagreeable notoriety, if his patron and friends had adopted the same view of his eccentricities, and removed him from a position peculiarly calculated to aggravate any morbid condition of the brain. We should then have been spared the astounding scenes which are described in the subjoined narrative. Within our limited space it was impossible to give a full report of the proceedings; we must reserve that for its more appropriate place, in the County Courts Chronicle, of whose history it will be the most singular passage yet recorded. The article, which we have extracted from the Times, presents a sufficiently full and accurate outline of the affair for these columns, and upon the facts there stated, we are sure that every one of our readers will heartily subscribe to the call upon Lord CARLISLE to do his duty, with which that article concludes.

We feel not the slightest doubt as to the sad cause of this outbreak. We pity Mr. RAMSHAY for his affliction, but not the less is it necessary that the administration of justice should be protected against further disgrace by his instant removal to some safer custody.

Looking upon it as a medical case, we trust that the victims of his malady will be generous enough not to pursue their advantage to his ruin.

Some insolvent cases will again require to be noted by the practitioner in Macrae's Practice.

In about half an hour Mr. Whitty made his ap-
pearance, and the charge was immediately proceeded
with.
The first witness called by the learned judge was
Mr. Sumner, the examiner of the court, who, on
being sworn, deposed that on Saturday morning last,
about ten o'clock, a person was posting bills in the
neighbourhood of the court, some of them within
ten or a dozen yards, and others thirty or forty yards
from the court. Those placards announced the pub-
lication of the Journal, and contained a line in large
letters, "Mr. Ramshay's opinion of the people of
Liverpool." It was impossible for the judge, in
coming to the court, to avoid seeing those placards,
and witness did not consider them fair reporting at
all; they were placed so to catch his honour's eye in
his way into court. Upon the arrival of the judge,
witness received orders to pull down the placard,
which he accordingly did. It was now produced in
court. The practice was common for newspaper
bills to be posted in the neighbourhood of the court;
the Chronicle bills had twice referred to Mr. Ram-
shay, but the Journal several times.

Sir George Stephen inquired of his Honour what
previous acts had to do with the specific offence
charged against Mr. Whitty?

The JUDGE said, that the evidence went to show
that it was a practice to insult the judge, and to bring
the administration of justice in that court into con-
tempt among the people of Liverpool, and there-
fore it must be considered in the amount of whatever
punishment he might feel it his duty to inflict.
Sir George Stephen, with submission, protested
against his client being made responsible for former
placards.

The JUDGE said he was not going to punish Mr.
Whitty because former placards were posted; but it
he could not be respected if he were to be held up
was necessary that a judge should be respected, and
to a system of annoyance like that which had been
practised by the defendant and others. The Act of
Parliament had placed stringent powers in the hands
of the judges of County Courts.

The examination of the witness was then proceeded with, and it was elicited that from 100 to 200 placards were posted in various parts of the town. The witness had known many insults to the Court in consequence of those placards, and even while he was taking down the bill in question, a man, who was present, called the judge a low scoundrel.

The JUDGE.-You see, Sir George, the poison has operated pretty rapidly. (To the witness.) Did you take that person into custody?

Witness.-No, your honour; I had no orders. In cross-examination by Sir George Stephen it transpired that the occurrence took place outside the court, upon which fact the learned counsel contended the judge had no jurisdiction.

Sir George Stephen respectfully submitted, as a member of the Bar-junior, certainly, in point of position to his Honour, but not in experience-that the public and the law looked upon the judge's honour and character as public property. He referred to the instance where the Examiner canvassed the conduct of Mr. Baron Platt, in the case of some sentences, which were placed in juxtaposition, and the Times had freely commented on the conduct of Mr. Justice Talfourd in the case of the Birds; but it was not for a moment held that in either of these cases an insult to the judges or a contempt of court had been intended; and the freedom of the press was not to be lightly invaded: the press had a right to comment on the judicial acts of the judge; and had the placard any epithet or adjective whatever-had it been good, bad, or indifferent, but decided, he said his client might, perhaps, fall under the animadversion of the learned judge. But the defendant had fairly and honestly recorded an event in his Honour's court, and the placard did not even express an opinion thereon. He therefore submitted that as the Crown, with all its prerogatives, the House of Lords, with all its judicial powers, and the House of Commons, with all its privileges, were justly amenable to the fair criticism of the press, the act of Mr. Whitty was not one within the jurisdic

tion of the laws, and should his Honour be of a different opinion, he would advise his client, rather than pay any fine, to go to prison for the term which his Honour might decide.

The learned judge here recalled the officer of the court, Mr. Sumner, who, in answer to some questions from his Honour, said that he knew of many cases wherein insults to the judge and the officers of the court had been given, chiefly, he believed, in consequence of these placards. That very morning a person in court had insulted the officers before the judge took his seat.

The JUDGE.-Is that person in court? Witness. He is, your Honour. [He then pointed out one of the reporters for the Albion.]

JUDGE.-What were the words used?
Witness. He asked me to give him a chair; and
as he had been pointed out to me as one of the re-
porters for the journal I refused, when he said I was
as bad as my master.

JUDGE (to the reporter).-Stand up, there.
JUDGE. What is your name?
Reporter.-Simon Harker.

JUDGE. Let this case stand over until the other is disposed of.

The learned judge then went over the evidence of Mr. Sumner and the comments of the learned counsel, stating that he considered the offence to be one of great enormity; and, for the protection of the Court, and as an example to others, he inflicted the full penalty of 51. or seven days' imprisonment in Lancaster gaol. He was sorry the law did not impose a more severe penalty, but he felt bound to inplicit on the point; he was protected not merely in The JUDGE said the Act of Parliament was ex-flict the very highest that the Act allowed. the Court, but in going or coming; and the effect of that placard was to discompose his mind for the administration of justice on that morning.

Sir George Stephen contended that the Legislature could not have contemplated any provision for protecting the mind of a judge; if the line in the placard were taken by itself, he submitted that no possible insult could be extorted from it. What did it say? Merely, "Mr. Ramshay's opinion of the people of Liverpool." And if it were to be taken in connection with the paragraph in the paper itself, it was not attempted to be denied that the paragraph was a fair and impartial report of what had taken place in the court, and that the words used by hls Honour were accurately quoted.

the bailiff, and placed in the dock appropriated to Mr. Whitty was then ordered into the custody of defendants, where, for more than three hours, he remained, while some other cases arising out of the same transaction were proceeded with.

SECOND CASE.

Mr. Michael James Whitty, editor and proprietor of the Liverpool Journal, having been placed in custody in the defendant's dock, his Honour (the Judge) directed the bailiffs of the Court to stand forward, in reference to the charge against the defendant of resisting them in the execution of their duty.

In Re Sloate, 18 Law T. 9, it was held that an insolvent must describe himself in his petition by all the names in which he has carried on business, and in Re Johns, 18 Law T. 10, that a person living by speculating in horse-racing must describe himself as of that occupation. In Re Smith, 18 Law T. 9, where the schedule had been lost in the office, the Court agreed to hear the case on the draft of the The JUDGE said that, whether the paragraph were attorney. In Re Parsons, 18 Law T. 10, the in- an encomium or against him he did not know, for solvent was held to be responsible for the extra costs he had not read the paper. He took the placard as incurred by his attorney in pleading to gain time. it stood, upon its own merits, and it was not be In Re W. Stent, 18 Law T. 10, the Court refused endured that those who were charged with the to interfere where an insolvent on bail had been administration of justice, especially among the poor arrested, prior to the date of the petition, by an and ignorant, who were easily misled by announceorder of a County Court. In Re Mansell, 18 Lawments of this kind, should be subjected to annoy-three o'clock he found him in the office. There was ances that might have the effect not only of unfitT. 10, it was held that creditors could oppose a ting them for the due execution of their duties, but of petitioner's application for a discharge ad interim, taking from them that degree of respect which was inupon the grounds of opposition enumerated in dispensable for the proper exercise of their duties, and section 24, and that the Court would act upon them, probably of exciting some of the numerous parties not only on the day of the first examination, but against whom he had to decide to make an attack also on the preliminary application by prisoners for upon his life. The life of a County Court judge was interim discharge. Lastly, it was decided in Re of some value to his friends, whatever it might be in Whittle, 18 Law T. 10, that a single isolated case the estimation of those who thus assailed him; and of a petitioner publishing a book incidental to his it was likely that if there was no check put to a system of annoyance of this kind, the melancholy profession, would not constitute him a "trader." end of a more exalted man than himself might possibly be his. The learned judge then proceeded at

Hartley, one of the bailiffs, was then placed in the box, and being sworn, deposed that on Saturday last he received from the judge an order to bring Mr. Whitty before this Court for an insult to the judge in going to the court. On arriving at Mr. Whitty's office, about eleven o'clock, he had not arrived, and on going again about one o'clock, the defendant had been in, but was gone out again. The witness left. word that Mr. Ramshay wanted to see him; and at another bailiff named Charnley present. Witness told Mr. Whitty he had orders from the Judge of the County Court to bring him before the court for insulting" the judge. Defendant replied he didn't know the man, and said he wouldn't go; but that if we would get a summons or a warrant, he would go, and he would wait for us an hour. Witness then returned, and stated the answer he had received; when he got orders to go immediately and fetch the defendant. Witness took assistance, went back, told defendant the order, and said he must go with them, and that he had better go quietly. Upon this, Mr. Whitby pulled out a drawer, and took out

66

[From the Times.]

a large knife, about a foot long, and threatened to MR. RAMSHAY'S FREAKS AT LIVERPOOL.
"cut our souls out if we attempted to touch him."
He then backed towards a door, and went down
stairs; witness followed, but the defendant's son
interfered, and called the printers to put us out.
Among fourteen or sixteen men who came there
were some policemen, whom witness knew as detec-
tive officers. The defendant had formerly been
head constable of Liverpool. On asking these men
to assist us, said the witness, they inquired for our
warrant, and on our telling them we had none, they
said then they could not assist us. One of the men
held his fist in witness's face-

JUDGE.-Do you see that man here? Witness.-No, your Honour. JUDGE.-Then look after those men; I'll have every one of them brought up here. His Honour then directed Mr. Stone, the high bailiff of the Court, to apply to the mayor for assistance for this purpose. The witness then underwent a long cross-examination by Sir George Stephen, in the course of which he admitted that he was not quite sober at the time. He had had two twopennyworths of whiskey. Sir George Stephen.-Who gave you the order to arrest Mr. Whitty, and bring him to this court?

The witness was silent for some moments, when The learned JUDGE said—I did. I gave him the order. By the word "bring" I meant to use force if necessary; and even if it required ten thousand men I should get them. I care for no man living who opposes me.

Sir George Stephen.-There can be no doubt as to your Honour's intention, but I submit you have not the power.

Sir George Stephen (to the witness).-The knife you have spoken of-was it round at the point?Yes, it was rounded off.

Sir George Stephen.-Did you offer to take Mr. Whitty into custody before he took out the paper knife?-Yes.

Roger Charnley, another bailiff, corroborated the evidence of the preceding witness.

The court was crowded with a very respectable audience, and while Sir George Stephen was contending that had the case been his instead of Mr. Whitty's, and officers had entered his house without any legal authority, and attempted to take him into custody, instead of merely threatening them with a paper knife, he (Sir George Stephen) would have shot them, the sentiment was received with a perfect burst of applause.

The learned JUDGE called upon the bailiffs to do their duty, and bring before him any of the persons who had been engaged in that outrage.

The bailiff at the door not making any movement to apprehend any person, his Honour asked him who it was that had been guilty of such unbecoming conduct, and unless he pointed them out he would fine him 51.

The officer replied that he could not point out any one in particular; he believed the noise was general. His HONOUR.-What! do you mean to say that the respectable persons whom I see in court, some of them members of the Town Council, were guilty of such gross insult as that which has just been given?

The officer again assured his Honour that he could not distinguish any individual in particular, and the case proceeded.

Charnley went on to say-Mr. Whitty asked us, when we went to arrest him, where our warrant or authority was? We said we had no warrant, and he refused to go, but if we got a warrant or a summons he would go at once, and he would wait an hour. We then returned to this court, and received instructions from the judges to return and take him. The defendant's men, to the number of fourteen or fifteen, came out and gave us into custody, and on our going before the superintendent he said we could not take Mr. Whitty without a warrant.

SOME time ago we called attention to the very inadequate provision made by the Legislature for the investigation of charges against the judges of the County Courts, a question which the increase of their jurisdiction, present and prospective, renders daily of more pressing importance. We have now to call public attention to a train of circumstances illustrating most fully the defects of the present law, and casting, we regret to say, no small discredit on a number of persons occupying judicial situations, and bound by the nature of their offices to more than ordinary care and discretion. Some time ago the judge of the Liverpool County Court was drowned. The Earl of Carlisle, upon whom, as Chancellor of the Duchy of Lancaster, devolved the duty of naming a successor, selected for the place Mr. Ramshay, of the Northern Circuit, a gentleman who, in addition to his other qualifications, possessed the merit of being the son and grandson of two successive land agents for his lordship's family. This gentleman's conduct in his office gave great dissatisfaction to a large number of persons in Liverpool, and complaints rained thick as hail upon Lord Carlisle, who has by the 18th section of the County Courts Act the power to remove the judge for inability or misbehaviour. So forcibly was Lord Carlisle impressed with the unfitness of Mr. Ramshay for the situation which he occupied that he earnestly requested him to resign his office, and even went so far as to offer that, if he would do so, he should be indemnified at Lord Carlisle's expense for the pecuniary loss which such a step would involve. Mr. Ramshay refusing to accede to this request was prevailed upon to discontinue sitting, and to discharge his duties by deputy until the complaints against him should be investigated. In this investigation Mr. Serjeant Wilkins appeared as counsel for Mr. Ramshay. The County Courts Act provides no means of enforcing the attendance of witnesses to give evidence on such an occasion, or of examining those who present themselves on oath, and the result was, as might naturally have been expected, that Lord Carlisle, whatever might be his private opinion of Mr. Ramshay's unfitness, did not find in the evidence adduced sufficient to warrant him in removing him from his office. Mr. Ramshay was therefore remitted to his duties as County Court Judge in Liverpool by a superior who felt so strongly the necessity of his removal that he had actually engaged to pay him a thousand a-year for life rather than that he should continue in his office.

Courts Act, which imposes that penalty on any person who shall wilfully insult the judge or an officer during their sitting or attendance in court, and three sums of 51. each, under the 114th section, for assaults on the bailiffs in the execution of their duty. In default of payment of each of these sums of 51. Mr. Whitty was sentenced to four terms of imprisonment of seven days each. A reporter for the Albion, who asked for a chair, and on being refused, under the supposition that he was connected with the obnoxious journal, told the bailiff that he was as bad as his master, was for this sentenced to a similar fine.

It would be an insult to the common sense of our readers to comment gravely on these outrageous pro ceedings, or to shew by argument what is transpa rently clear, that the placarding question had nothing offensive in it, and that, if it had, the posting it at thirty or forty yards from the court was not an insult to the judge during his sitting or attendance there. Nor shall we condescend to shew that bailiffs seeking, on the verbal command of the judge of an inferior court, to drag a free citizen froin his dwelling, are not in the execution of their duty, and have no claim whatever on the protection of the law. Of course Mr. Ramshay cannot be allowed to proceed in this unprecedented career, or to get up a small reign of terror of his own, for the purpose, as he boasts, of avenging the fate of his predecessor. If Lord Carlisle had not sufficient evidence before, he has it now, and will incur a heavy responsibility if he allow such proceedings to continue for a single moment. Of Mr. Ramshay's conduct we are unwilling to think or write harshly; there is an eccentricity, an extravagance, and absurdity about it which seems only too clearly to point out that, whatever may have been the case before, the mind of this gentleman is not now in a state for the discharge of judicial duties; and we sincerely regret that they in whom the authority is vested should have permitted him to retain a situation in which he has, unhappily, had the opportunity not merely of making public his infirmities, but of rendering himself liable to legal proceedings of the most formidable description. We cannot suppose that on a true return to a habeas corpus any judge would permit a person to remain in prison under such a sentence; but it is melancholy to think of the scandal to public justice, as well as the inconvenience to private persons, which has been occasioned by the disregard of public opinion which retained this gentleman in a situation long after his bodily illness and mental infirmities had become unhappily matters of notoriety.

We cannot conclude without expressing our sur prise that the police magistrate of Liverpool, and the Judge of the Chester County Court, should have been guilty of the glaring impropriety of attending a proceeding so exceptional and objectionable in its character as a banquet given by a judge in his own court to commemorate his own acquittal, and which, in addition to every accessory which would aggravate its indiscretion and bad taste, was sure to be viewed as an insult by many of those to whom it is their duty to administer justice. Singular and mixed also must have been the feelings of the learned serjeant who figured so conspicuously on the occasion,-pleasure at the receipt of the splendid present, tempered by pain at the speech with which it was accompanied, and which only too clearly proved that the eloquence which it rewarded had been exerted in vain,-exultation at the triumph of past advocacy, mingled with well-grounded apprehensions of future indiscretion on the part of his client. Now that all these rejoicings are at an end, it only remains for Lord Carlisle immediately to remove their object from his judicial situation, and save him from that ruin which a few more such exhibitions as those of last Monday must infallibly bring upon him.

The first step of Mr. Ramshay tended to justify Lord Carlisle's private opinion, and to discredit his judicial decision. The judge issued cards for a banquet to be held in his own court, "in honour of the great principle of judicial independence, so long and so recklessly assailed in this town." The banquet was held accordingly. The mayor did not honour it with his presence, though Mr. Ramshay, in a carriage drawn by four gray horses with postilions, waited upon him with an invitation; but we regret to say Mr. Mansfield, the police magistrate of Liverpool, and Mr. Harden, the judge of the Cheshire County Court, were present at this most unseemly festival. After dinner, Mr. Ramshay delivered a long and rambling speech, insinuating, we trust without foundation, that the death of his predecessor was attributable to persecution from the press of Liverpool. He then narrated the circumstances of his own appointment, and intimated that, had the decision of Lord Carlisle been against him, he should have resisted it. He then expressed his determination to teach the press of Liverpool to behave themselves better, and assured them the greater their insubordination the greater would be their punishment. In conclusion, he presented Mr. Serjeant Wilkins with a piece of plate in acknowledgment of his services. In returning thanks, Mr. Wilkins entreated Mr. Ramshay not to abuse the vantage ground he had gained, reminded him that he could afford to forgive, and begged him while he judged to entertain mercy. On drinking the health of a Hungarian gentleman. present, Mr. Ramshay recited some doggrel verses, expressive of the hope that England, France, and Hungary would fight again the battle of freedom on the plains of the latter country. The sequel of these proceedings, which explains the decisions upon the Practice of the Law. The the serjeant, we gave in our impression of yester- were briefly as follow. A. was employed by B. as the threats of the judge and the deprecation of Rolls Court supplied one last week. The facts day. A placard having been posted not far from her solicitor, to obtain probate of the will of C., the court, bearing the heading, "Mr. Ramshay's under which she was executrix and residuary legatee. Since the above was reported, there have been Opinion of the People of Liverpool,' "the judge He proceeded to do so, but was opposed by parties other proceedings, too long to be noticed here. Mr. despatched a bailiff to take into custody the for whom D. was solicitor. On this, A. advised B. Whitty has been actually sent to prison, and re-editor of the Liverpool Journal, by whose direction to buy off the opposition for 1001. B. annoyed leased by subscriptions of his friends under protest. this placard, announcing the publication of the paper, at this advice, applied to E. another solicitor, The town is in a ferment, and the arrival of the had been issued. Mr. Whitty, the editor, asked the to investigate the matter, which he did, and, Earl of Carlisle is hourly expected. A public meet- bailiffs for their authority, and, upon their being uning has been convened. able to produce any in writing, he, under the advice agreeing with A. in the prudence of his advice, of his attorney, refused to attend. A scuffle ensued, was paid. Nevertheless, B. continued but the bailiffs were unable to apprehend the editor. to employ E. to watch the case, though A. Finally the judge condescended to issue a summons, was still the solicitor in the suit. When the in obedience to which Mr. Whitty attended, and was business of the executorship was concluded, D. (the fined 57. under the 113th section of the County solicitor for the opposing parties) produced to A.

The JUDGE said the superintendent ought to have known that no warrant was necessary from the judge of a County Court in arresting a person for contempt; but he cared not who the man was, be he peer or peasant, that obstructed or insulted any officer of the court, he would have him apprehended.

A long examination of other witnesses took place, and the proceedings were still in progress when our despatch was made up.

The proceedings in this important case terminated each on three cases of assault, and seven days' imat half-past four. The judge fined Mr. Whitty 51. prisonment each for two cases of alleged assault on the officers of the court.

THE LAWYER.

Summary.

CASES upon the Taxation of Costs are of specia interest to our readers, and therefore will first claim attention in this department, devoted to a review of

the sum

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be

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331

his bill of costs, and also the accounts of an estate from which the property of the testator had been derived, and which were approved both by A. and E. and the balance was paid over. E. then obtained from B. a written authority to pay to A. his bill of costs, which was done; E. retained his own costs, and the balance was paid to B. No bill was delivered by E., and D. (the solicitor to the opposing parties) refused or neglected to deliver a bill of costs. On a motion for taxation, it was held that E. was bound to deliver his bill, and that, under the 38th section of The Attorney's Act, D. was bound to deliver a copy of his bill of costs to B. on being paid the amount of it; that A.'s bill was taxable under the circumstances, though paid. "The relative position of A. and E. appears to me," said the MASTER of the ROLLS, "of itself to constitute such a special circumstance as to make it right to tax the bill, notwithstanding payment. I cannot consider that the petitioner was, under the circumstances of this case, acting under the advice or protection of an independent solicitor, or that Mr. B. has a right to be protected against the taxation of a paid bill." (Re Billing, 18 Law T. 2.) This should be noted in Pulling's Law of Attorneys; a reference to the page and note of the report will suffice.

LATE CASES ON THE STATUTES OF
LIMITATIONS. (a)

THE several statutes which have been passed for the limitation of actions relating to money within a certain period, and which are termed Statutes of Limitation, are those of 21 Jac. 1, c. 16; 4 & 5 Anne, c. 16, and the 9 Geo. 4, c. 14. It is our intention, on the present occasion, first, to consider the general object and scope of these statutes, then

to

such cause of action or suit given or accrued, fallen,
or come, beyond the seas, to bring the said action
against such person after his return from beyond
the seas, so as they take the same after his return
from beyond the seas within the time limited by the
statute of James."

there is a cause of action, a plaintiff in England capable of suing, and a defendant of being sued, and having begun to run, no subsequent disability affects it. It is, therefore, no answer to a plea of the Statute of Limitations, that after the cause of action accrued, and the statute had begun to run, the debtor within the six years died, and that, by reason of litigation as to the right to probate, an executor of his will was not appointed until after the expiration of the six years, and that the plaintiff sued such executor within a reasonable time after probate granted. (Rhodes v. Smeythurst, 4 M. & W. 42; Freake v. Cranfeldt, 3 Myl. & Cr. 499.) A bill of exchange was drawn, payable at a certain future period, for the amount of a sum of money lent by the payee to the drawer at the time of drawing the bill. The payee was allowed to recover the money in an action for money lent, although six years had elapsed since the actual advance of the money, it being held, that the statute began to operate only from the time when the money was to be repaid, that is, when the bill became due. (Wittersheim v. Lady Carlisle, 1 H. B. 631.)

We have next to inquire what is such an acknowledgment of a debt as will take the case out of the Statute of Limitations. The modern cases upon the subject have satisfactorily settled the principles upon which an admission of the debt, after the lapse of six years, is allowed to revive the remedy, and obviate the operation of the Statute of Limitations, 21 Jac. 1, which does not, it will be remembered, contain any provisions upon the subject of such new acknowledgments. It was formerly the rule that any acknowledgment or admission that the debt was unpaid, from which a promise to pay might reasonably be implied, would be equivalent to an express promise. This rule was afterwards very much relaxed, and the slightest acknowledgment was deemed sufficient to take the case out of the statute. But now it is

By the Act 9 Geo. 4, c. 14, commonly called Lord Tenterden's Act, reciting the statute 21 Jac. 1, c. 16, and that various questions have arisen, in actions founded on simple contract, as to the proof and effects of acknowledgments and promises offered in evidence for the purpose of taking cases out of the operation of the said enactments, it is enacted, by sec. 1, that in actions of debt, or upon the case grounded upon any simple contract, no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of the said enactments, or either of them, or to deprive any party of the benefit thereof, unless such acknowledgment or promise shall be made and contained by or in some writing, to be signed by the party chargeable thereby, and that where there shall be two or more joint contractors, or executors, or administrators of any contractor, no such joint contractor, executor, or administrator shall lose the benefit of the said EQUITY PRACTICE.-In Re Gascoigne, 18 Law enactments, or either of them, so as to be chargeT. 3, Vice-Chancellor BRUCE held that he had able in respect or by reason only of any written acauthority to appoint a receiver upon petition, the knowledgment or promise made and signed by any Registrar having great doubt whether such a juris-other or others of them: provided always, that diction was given to the Court. nothing in that Act contained shall alter or lessen the effect of any payment of principal or interest made by any person whatsoever: provided also, that in actions to be commenced against two or more such joint contractors, for executors, or administrators, if it shall appear at the trial, or otherthe said recited Acts, or this Act, as to one or more wise, that the plaintiff, though barred by either of of such joint contractors, executors, or administra- required that the acknowledgment or admission tors, shall nevertheless be entitled to recover against shall be such that a promise to pay, &c. may be any other or others of the defendants by virtue of a implied from it. (Brigstock v. Smith, 1 Cr. & M. new acknowledgment or promise, or otherwise, 483; Linsell v. Bonsor, 2 Bing. N. C. 241.) An judgment may be given, and costs allowed for the admission of the payment by the defendant, if it be plaintiff as to such defendant or defendants against not in writing, is no evidence of it. (Willis v. whom he shall recover, and for the defendant or Newham, 3 You. & I. 518; Maghee and Ux. v. defendants against the plaintiff. Sec. 2 enacts, that O'Neil, 10 L. J. 326, Ex.) But his parol admisThe object aimed at in passing Statutes of Limi- if any defendant or defendants in any action on sion as to what debt the payment was to be approtation is thus ably and satisfactorily laid down by any simple contract, shall plead any matter in priated to is deemed good evidence in proof of the Pothier:-" Prescription is founded, first, upon a abatement to the effect that any other person or appropriation. Since 9 Geo. 4, c. 14, the acknowpresumption of a payment, or release arising from a length of time; as it is not common for a creditor persons ought to be jointly sued, and issue be ledgment must be signed by the party chargeable. joined on such plea, and it shall appear at the Signature by an agent in the name of the principal, to wait so long, without enforcing payment of what trial, that the action could not, by reason of the and with his assent, was held insufficient in Hyde v. is due; and as presumptions are founded upon the said Acts, or this Act, or either of them, be main-Johnson, 2 New Cas. 776. Even before that Act ordinary course of things, ex eo quod plerumque tained against the other person or persons named Lord Tenterden held that, as against an executor, fit, cujus in parat. Ad. tit. de. prob.; the laws have in such plea, or any of them, the issue joined on an acknowledgment merely is not sufficient to take formed the presumption, that the debt was acquitted such plea shall be found against the party pleading the case out of the statute, but there must be an or released. Besides, a debtor ought not to be the same. By section 3 it is provided, that no in- express promise, and if there are several executors obliged to take care for ever of the acquittances, dorsement or memorandum of any payment written a promise by all. (Tulloch v. Dunn, R. & M. which prove a demand to be satisfied; and it is or made after the time appointed for this Act to 416.) Where an action was brought by A. and B. pro per to limit a time beyond which he shall not be take effect, upon any promissory note, bill of ex- and C. his wife, upon a joint promissory note made under the necessity of producing them. Secondly, change, or other writing, by or on the behalf of the by A. and C. before her marriage, and the promise tis also established as a punishment for the negli-party to whom such payment shall be made, shall was laid by A. and C. before her marriage, and the ence of the creditors. The law having allowed him Statute of Limitations was pleaded, upon which issue Lo institute his action, the claim ought not to be was joined, it was held that an acknowledgment of received when he had suffered that time to elapse." the note by A. within six years, but after the inter(Contr. p. 3, c. 8, art. 2, by Evans, vol. 1, 451.) marriage of B. and C. was not evidence to support As regards the effects of these statutes, it is obthe issue. (Pittman v. Foster, B. & C. 348.) served by Mr. Chitty, in his admirable "Treatise An acknowledgment by the acceptor of a bill on the Law of Contracts," that the Statute of that he was indebted on it to the payees, but that Limitations does not discharge or extinguish the Before this Act, promises or acknowledgments he was not indebted to the drawer, there being no debt; it only bars the remedy by action, so that a implying promises, took a case out of the statute, consideration for the bill, is not sufficient to take bar in respect of the debt is not destroyed, though and this Act has made no other change in the law the case out of the statute in an action by the the remedy by writ to recover the debt be gone. in this respect than by requiring such acknowledg-drawer. (Easterby v. Pullen, 3 Stark. 136.) An Upon this principle it is that the demand may be ment or promise to be in writing, signed by the acknowledgment made to a stranger that the debt is revived by the debtors' acknowledgment of its ex-party chargeable. No alteration is introduced in owing to the plaintiff is sufficient. (Peters v. istence, without any new consideration. Brown, 4 Esp. 46.) So an acknowledment within six years in a debt between the defendants and third persons of the existence of a debt due to the plaintiffs, who are strangers to the deed. (Mountstephen v. Brooke, 3 B. & A. 141.)

trace the effect of them, and, under various heads, to review the different decisions which have from time to time been made on questions arising

out of their construction.

The stat. 21 Jac. 1, c. 16, s. 3, enacts that "all actions of account, and upon the case (other than such accounts as concern the trade of merchandise

between merchant and merchant, their factors, or servants), and all actions of debt grounded upon any writing or contract, without specialty, and all actions of debt for arrearages of rent, shall be commenced and sued within six years next after the

cause of such action or suit, and not after."

be deemed sufficient proof of such payment, so as
to take the case out of the operation of either of
the said statutes. Section 4, enacts, that the said
recited Acts, and this Act, shall be deemed and
taken to apply to the case of any debt or simple
contract alleged by way of set-off on the part of
any defendant, either by plea, notice, or otherwise.

the form of the acknowledgment or promise, or with
regard to the party to whom it is to be made.
(Rosc. N. P. 315.)

The first point for our consideration under the above subject is, when does the Statute of Limitations begin to run? The statute begins to run from the day the cause of action accrues. But it does not begin to run or operate from the time of making a contract or promise unless a full and complete cause of action instantly accrue thereon. This statute applies to all actions upon a written The six years is to be dated from the day upon or parol contract, for the recovery of a debt or which the plaintiff might have commenced an damages, whether the claim be made in a court of action for the recovery of his demand. In the in equity: (Bac. Abr. Limitation of case of goods sold, if no specific credit be Actions). It applies to an action on a bill of agreed upon, it begins to run from the day of exchange: (Renew v. Acton, Carth. 3.) the sale; but where goods are sold, to be paid for at a particular time, the statute does not begin to run until the expiration of the credit. (Chitty on Contract, 814; Rosc. N. P. 313; Archb. N.P. 130; Helps v. Winterbottom, 2 B. & Ad. 431.) But the statute begins to run from the moment that

law or

By stat. 4 & 5 Anne, c. 16, s. 19, persons entitled to the causes of action by the statute of James, shall be at liberty, if the person against whom the cause of suit exists, were, at the time of (a) By GEORGE HARRIS, esq. Barrister-at-Law.

In some cases, however, a very slight acknowledgment of the debt has been held sufficient. Thus, where, in answer to an application for money due from the defendant and C., the defendant wrote, I receive your letter, and beg leave to refer you to my trustee, Mr. W. H. on this complicated business. I should be glad to be informed how you have settled it with C.," Lord Kenyon held the acknowledgment sufficient. (Baillie v. Lord Inchiquin, 1 Esp. 435.) "What an extravagant bill you have delivered me!" was held an acknowledgment of some money being due. (Lawrence v. Worrell, Peake 93.) An acknowledgment since action has been held sufficient. Yea v. Fouraker, 2 Burr. 1099.) In Roscoe's Nisi Prius, 319, a doubt is, however, expressed whether

such an admission would now be held sufficient, inasmuch as the implied promise is supposed to be the one mentioned in the declaration.

In the following cases the acknowledgment has

been deemed not to be sufficient. Where, in answer to a letter from the plaintiff's attorney, the

defendant wrote, "Sir,-As soon as I am able to attend to my concerns, I shall wait on Captain C. (the plaintiff), whom I shall be able to satisfy respecting the misunderstanding which has occurred between us," GIBBS, C.J., thought it not sufficient to take the case out of the statute. (Craig v. Cox, Holt. Q. P. 380.) So, where, in answer to a demand for charges relative to the grant of an annuity, the defendant said, "he thought it had been settled at the time the annuity was granted; but he had

been in so much trouble since that he could not re

They are commenced by the delivery to the person in possession of the property to be recovered of a written statement purporting to be a declaration in an action of trespass and ejectment, alleged to have been previously commenced in one of the Superior Courts at the suit of a fictitious person, generally called John Doe (and styled "the nominal plaintif"), against another fictitious person, generally called Richard Roe (styled "the casual ejector"). It states that the person in whom the title really is (styled "the lessor of the plaintiff"), on a day collect anything about it. (Hellings v. Shaw, named, made a lease for certain number of years to B. Moore, 340; S. C., Taunt. 611.) In Fearn v. the nominal plaintiff John Doe of the property in Lewis (6 Bing. 349), it was laid down that the question, which is described in terms so vague as to writing must import an unqualified acknowledg-give no clue to its identity. John Doe is then stated ment of a debt, from which a promise may be inferred to have entered and remained in possession until the by the Court. Where the expressions of the defendant imaginary defendant Richard Roe ousted or ejected are ambigious, it was held a question of fact for the him, and it is then alleged that John Doe has susjury whether they amounted to an acknowledgment tained damage by such ejectment to a certain of the debt. (Lloyd v. Maund, 3 T. B. 760.) In amount, for which he brings his action. At the foot of that statement is a letter from Richard Roe to later cases, however, it has been held that the con- the person in possession, informing him that he, struction of a doubtful document given in evidence Richard Roe, is sued as a casual ejector only, and to defeat the Statute of Limitations, is for the advising the actual possessor to appear in court and Court, and not for the jury, though if extrinsic facts procure himself to be made defendant in the stead are adduced in explanation, these facts are for the of Richard Roe, or that he will be turned out of consideration of the jury. (Morrell v. Frith, 3 possession. M. & W. 402; Routledge v. Ramsay, 8 A. & E. 221.) Where the defendant acknowledges the debt, but insists at the same time that the statute bars it, such acknowledgment has been held, in several cases, to take the case out of the statute. (Bryan v. Horsman, 4 East, 599; Rucker v. Hannay, id. 604; Leafer v. Saltar, 16 East, 420.) A different principle was laid down, however, in Tanner v. Smart, 6 B. & E. 603, which require that the acknowledgment should be one which implies an unqualified promise to pay. Where the defendant acknowledges the debt, but insists that it is paid or discharged, the whole of his admission must be taken together, and the case will not be taken out of the statute. (Ros. N. P. 320.)

The following letter, by the defendant, to a clerk of the plaintiff, in answer to one applying for payment of a debt, was held insufficient to defeat a plea of the Statute of Limitations :-" I will not fail to meet Mr. H. (the plaintiff) on fair terms, and have now a hope that before, perhaps a week from this date, I shall have it in my power to pay him, at all events a portion of the debt, when we shall settle about the liquidation of the balance." (Hart v. Prendergast, 15 L. J. 223, Ex.)

It has also recently been held that a letter written by a debtor to his creditor in answer to one asking for security by mortgage of the debtor's property, and objecting to the proposal, but saying, "I will endeavour, before any great length of time, to give your account my serious consideration, and see what can be done with it," is not a sufficient acknowledgment to take the case out of the statute. (Liddell v. Robinson, 17 Law T. 61, Q. B.)

Thus much for the acknowledgment required to take a case out of the Statute of Limitations. In our next we shall proceed to consider the effect of different promises to pay the debt, and part payment of it, together with the several other branches of this important subject, which generally present themselves to our notice, when the statutes referred to are sought to be availed of.

SUPERIOR COURTS OF COMMON LAW.
FIRST REPORT.

The above statement must, as a general rule, be
served upon the person in actual possession, either
personally or in such a way as to satisfy the Court
that it has come to his possession or knowledge
before the first day of the term in which proceedings
are to be taken.

the time allowed by the practice of the Court, viz.
If the person in possession does not appear within
the first four days of the following Term when the
property is in London or Middlesex, or the entire
Term if the property is in any other county, judg-
ment is pronounced against Richard Roe that John
Doe recover his term, and upon that judgment
execution is issued, and the possession delivered to
the lessor of the plaintiff.

The proceedings in this most important action ought to be simple and speedy.

In fact they are neither the one nor the other. Not simple, because, as we have already shewn, several fictions are necessary in order to maintain the existence of Richard Roe, the lease to John the action; for example, the existence of John Doe, Doe, the entry of John Doe, the trespass by Richard Roe, and in some cases the original writ; none of which things really exist, and none of which there fore ought to be stated.

The form of the proceedings in ejectment is usually explained and justified by reference to its history, and there was a period at which it was a useful and a true process; that was when the forms of action appropriate to the recovery of land by per sons having a freehold estate were so cumbrous and complicated, so open to trifling objections, and so tedious, that the simpler, though, as it was sup posed, less dignified form, in which owners of chattel interests were allowed to sue, was preferred, so that the owner of a freehold incurred the expense of making a lease, and trying the question of title in the name of his lessee, rather than proceed in his own name by the appropriate real action; and even at this day, in order to maintain ejectment where the possession is vacant, a lease is actually made to some friend of the person who claims titlè,

of this form of proceeding, and, by an exercise of The judges at an early period discovered the merits their authority, which it is believed has no parallel in the history of the law, moulded it by degrees into its present shape, and established over it an equitable jurisdiction, so ample in the time of Lord Manshield, that the owner of the legal estate was not allowed to recover against the beneficial owner or cestui que trust in possession, but which has since shrunk into much narrower limits, and has been exercised prin cipally over the conduct of the parties to the suit, and those by whom they are put forward or instigated, rather than over the equitable merits or demerits of the right asserted.

The existence of such an equitable jurisdiction is most salutary, and in our judgment ought to be preserved.

Again, the proceeding is not so speedy as without any difficulty or injustice it might be made.

At present (with the exception of cases within the statute 11 Geo. 4 and 1 Wm. 4, c. 70, secs. 36 and 37, in which a right of entry accrues to a landurd The person served with the declaration in eject- during or immediately after Hilary or Trinity Term), ment, or, by leave of the Court, his landlord, may, a person from whom the possession of land is wrongand cause himself to be substituted as defendant in-person wrongfully in possession before the Term next however, appear within the time above mentioned, fully withheld cannot compel the appearance of the stead of Richard Roe, upon entering into a rule of following the service of the ejectment; so that, a Court (called "the consent rule,") the effect of instance, if a right of entry upon lands in Yorkshire which is, that the substituted defendant pleads the were to accrue on the 1st of June, between which general issue not guilty, and agrees upon the trial of time and the Summer Assizes there would be the cause to admit all the fictitious statements in the abundant time to take all necessary proceedings predeclaration to be true, and also that he was in pos- liminary to the trial, the person entitled to enter session at the time of the service of the original would nevertheless be unable to bring his adversary declaration and "to rely upon the title only." The into Court before the following November, or in case rule further provides for payment of costs by the of a defence being taken, to proceed to trial before fails to make the above admission at the trial the defeated party, and that in case the defendant March in the following year. plaintiff shall have judgment for his term against the casual ejector.

In cases where, by reason of the real plantiff and defendant being tenants in common, joint tenants, or coparceners, an actual ouster must be established in order to found an action of trespass, the consent rule is modified by requiring the substituted defendant to admit the fictitious ouster only in case an actual ouster of the lessor of the plaintiff is proved.

By a rule of Court, the consent rule ought to specify the property for which defence is taken, but in practice this rule is wholly disregarded, and the deproperty sought to be recovered being delivered fect is occasionally supplied by particulars of the under a judge's order for that purpose.

The parties proceed to trial upon the issue joined upon the plea of not guilty to the declaration, which, pursuant to the consent rule, is converted into a declaration by the nominal plaintiff against a real defendant.

(Continued from vol. 17, page 254.)
AMENDMENT.
Having thus traced the principal steps of a cause, At the trial, if the defendant does not appear, or
and pointed out the particular improvements which appears and does not admit the fictitious statements
have suggested themselves to our minds, we have to be true, according to his agreement embodied in
now, for the purpose of enlarging the power of the the consent rule the plaintiff is nonsuited, but is
judges to dispose of objections arising from mistakes nevertheless, by the terms of the consent rule, enti-
in any part of the proceedings, to recommend a tled to a judgment and execution, and the lessor of
general enactment to the effect that the Superior the plaintiff is entitled to receive his costs from the

Courts, and every judge thereof, and all courts real defendant.
sitting at Nisi Prius, shall have at all times the
power of amending all defects and errors in any pro-
If the defendant appears and makes the admis-
ceeding or stage of a civil action, whether there be sion according to the consent rule, the question is
anything in writing to amend by or not, or whether then tried upon its merits, whether the lessor of the
the defect or error be that of the party or not, and plaintiff, on the day when he is alleged to have made
upon such terms as to costs and otherwise as he or the lease to John Doe, and frotion, ens entitled to
the lease to John Doe, and from thence until the
they shall think fit, and that all necessary amend-ste property in question, and judgment for the
ments be made for the purpose of determining the the pro follows upon a verdict in the afirmative.
question in controversy in the then existing suit.
In case of a verdict for the defendant, he is entitled,
under the consent rule, to receive his costs from the

EJECTMENT.

We proceed to direct attention to the action of lessor of the plaintiff.

difference between ejectment and other actions, and We are unable to assign any good reason for this favour of its continuance. This latter objection we believe that no argument can be advanced in might, without altering the form of the proceeding in other respects, be removed by allowing the ejectment to be served at any time, calling upon the persons interested to appear within a given number of days after service, and giving to judges at chambers the same jurisdiction which the courts in bane now That would, however, leave unremedied the first exercise over judgments against the casual ejector. objection to which we have adverted, and which ap pears to us to admit of safe and easy removal.

be proper to advert (as we do on all occasions with Before proceeding to state our own views, it will former Commissioners, upon the same subject, which the most sincere deference) to the suggestions of the will be found at large in the Second Report of those Commissioners.

Those suggestions (which were not acted upon) we mode of removing the fictions which we have reconceive to be highly valuable, as pointing out a ferred to, though we consider that they may be improved upon, by preserving more completely to the action the character of trying the title only, which would be interfered with by allowing what in those suggestions was proposed to be allowed as a good plea, viz. a denial of the alleged ejectment. We consider the present form of action, whatever its other demerits, valuable in this respect, that it allows no question to be raised except that of title. If the person who brings the action has a right to posses sion, he ought to recover, without regard to whether action has ousted him or not. It is an action for the person in possession or who takes defence to the recovery of the land, without regard to any othe claim which may exist between the parties might suggestions to which we have above referred might affect this character, or throw difficulties or delay in the way of a claimant who was unable to select as a

18:

Lancashire, a writ of our Lady the Queen issued adjournment on the days following each of such sitting out his thoughts and feelings, instead of filtering

"Victoria, by the grace of God [here copy the erit]; and no appearance has been entered or deence made to the said writ [or, if there be a limited defence, say, except as to, state the portion for hich defence is made]: Therefore it is considered hat the said [here insert the names of the persons Sittings appointed in Middlesex and London, before Sir whom title is alleged in the writ] do recover JOHN JERVIS, Knt. in and after Michaelmas Term, 1851. ossession of the land in the said writ mentioned or, if defence be taken for part, say, except the