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With the question, whether the judges of the King's Bench were right or wrong, I have nothing to do(a,) but I am bound to judge whether if they were wrong, the statute of Westm. 2. gave a remedy to the party by this writ: as the Chancellor was originally bound to judge of the proper form of new writs, so is he still when new cases occur, and he is entitled to call for the assistance of the judges for the purpose of determining what the law is on the case upon which he is called on to determine. But I am of opinion that the statute: Westm. 2. does not apply to the case in question. I put out of my mind the consideration that there is no other remedy, and that there is no right without a remedy'; this is a mistake ; for before this statute there was a right without a remedy, and that statute was the remedy; then the question is, how far the statute has gone, and whether it applies to this particular case. If it be proper to provide a remedy for a particular case, and that the statute does not apply to it, an application ought to be made to the le
(a) Several instances are to be found of amendments of the sort made by the court of King's Bench in this case : vid. Dickens v. Grenvill, Carth. 3. Hil. 21 & 22 Car. 2, in which case it is said that several ancient rules made in like cases were produced to the court: vid. also Vicars v. Haydon, Cowp. 841. S. P. in which case the later authorities are collected. In the case of Power Lessee of Richard Boyce, and William Hobbs v. Rowe, (in Ireland, Pasch, 1802) the term expired whilst the case was depending in the Exchequer Chamber: the judgment having been affirmed, a motion was made to enlarge the term, and the court (LORD REDESDALE, C. assisted by the Chief Justices) on the authority of these cases made an order to amend the record by enlarging the term. A writ of error was then sued, returnable in Parliament, and upon the record so amended being transmitted, the plaintiff in error complains ed by petition to the House of Lords of the amendment made by the Court of Exchequer Chamber as an alteration of the record and prayed a writ of certiorari, to be directed to the court of Exche. quer, to transmit the record in its original form. Upon debate their Lordships refused the writ, holding the amendment to have been properly made, and finally affirmed the judgment on the merits. Vid. Lords' Journals, sess. 1802--3.
1803. gislature to extend the provisions of the statute: but I canLessee of
not do so by construction. Strong doubts have been enterLAWLOR tained, whether this statute extended to all the cases to
which it has been held to extend ; it was the idea of many MURRAY
persons that it extended only to trials at Nisi Prius; however it has been held to apply to trials at bar, and to other cases. I take the true rule to be, that, wherever any matter is capable of being brought upon the record, and the court refuses to allow it to be so brought, and this refusal does not in its nature come upon the record, though if the thing were allowed, that matter would appear on the record, this is the subject of a bill of exceptions : and all the cases cited to me are of this description. For instance, a party applies to have evidence received; the judge refuses it; there, the evidence if admitted, might appear on the record, but the refusal to admit it cannot appear on the
record: so in the case of oyer prayed, of challenge to juNo matter rors, and other cases which might be put. So that I conexcept such as if allowed ceive the construction the most extended that can be given would be on
to the statute, is, that every matter which would or might the record if disallowed,' be on the record if allowed, shall be brought on the record be properly if disallowed, by bill of exceptions : no case goes beyond brought on the record by bill this construction. of exceptions.
Now, what is the case here? an application is made to the court of King's Bench to amend the record, that is, to make it what it ought to have been but for a supposed misprision of the clerk : now, suppose it so amended, the fact of the amendment does not appear on the record ; it makes no part of the record : the record after amendment is as if it had been so originally: then here would be a record appearing as if it had been in its present state originally, and a bill of exceptions stating that it did not so appear ; this would be absurd. But if exceptions were taken in case of oyer, or of challenge of jurors, then the bill of exceptions
would be consistent with the record. The court of Error would feel great difficulty if such an exception were admitted. The bill of exceptions states the party to pray“ that “ the term of seven years may be enlarged ;” but, it does not appear on the record that there was such a term ; on the contrary it appears on the record that the term was not for seven years. This is not introducing any thing consistent with the record, and the court of Error must reject this as impertinent, or send it back into the court below to know what the record was before : and, what sort of writ they should use for that
I cannot conceive.
On the whole, I think this is not a subject to which the remedý by bill of exceptions can be applied. It is said that the party is without remedy; but there are many cases where no specific remedy is given either by writ or by action, but where courts are left to act discretionarily under the general peril of the oath the judges have taken ; and it is very wise that it should be so, to prevent endless litigation. If the judges were to amend records improperly, they would be liable to impeachment; and the whole history of amendments shews that it was in this way their discretion was considered as controulable. But it may be inferred from the frequency and the generality of the statutes authorizing amendments, that the legislature thought the courts rather tardy than over-hasty in exercising a discretionary power of making amendments; and it is clear to me that the present is one of the cases which the legislature has considered fit to be left to such discretion. When one adverts to the case itself, it is astonishing to hear it said that the judges have done wrong in permitting this amendment; but even if they had, the remedy was not by means of this writ.
Dec. 4, 1802.
TAGGART v. TAGGART. Feb. 4, 1803.
WILLIAM TAGGART the elder, the grandfather of On articles previous to the the plaintiff, being possessed of the lands in question, by
T. with R. F. virtue of a lease for years with a covenant for renewal toties the father of W. T. - Hound quoties, held under the see of Raphoe, and a marriage being “the whole of intended between his son William Taggart and Rebecca l'in" the farm of, « &c. as a dow. low, articles of agreement bearing date 28th November, 1771,
ry or mar- were entered into between Wm. Taggart the elder, Wm. riage portion
Taggart the younger, and Rebecca Finlow, whereby “ It " W. T. along
was witnessed, that in case said marriage took place, the "s with R. F. " the one-half
“ said Wm. Taggart the elder bound as a dowry or marriage of said farm « portion to his son W. T. the younger along with the said is to
right title and “ Rebecca Finlow, the whole and every part and parcel of "interest of the " the farm of land that he then actually held and enjoyed " issue whe. “ ther son or
“ in the town of Lislaferty, the one half of said farm to be “ daughter, if begotten on
“ the right, title, and interest of the issue whether son or “ the body of “ R. F. by W.
daughter if begotten on the body of said Rebecca by said “William the younger, together with the sum of 401.”
s to his son
The issue take as tenants in COnLinon.
The marriage took effect, and William the younger entered into possession and died in 1792, (having been twice married) leaving two children of the first marriage, namely one daughter, the plaintiff, and a son foseph, (since deceased, and to whom the plaintiff has obtained administration) and five children of the second marriage. By his will he took upon him to dispose of the interest in the lease, and his executors obtained a renewal thereof in their own names, for the trusts of the will. . This bill was filed by the only surviving issue of the first marriage, against the second wife, the children of the second marriage, and the execu
tors of William the younger, and it prayed that the articles of November 1771, might be carried into execution, and the plaintiff decreed to be entitled to the possession of the moiety of the lands thereby agreed to be settled to the use of the issue of the first marriage, and that the renewal of the lease taken in the name of the executors should be decreed a trust for the plaintiff as to said moiety. The question was, whether the issue of the first marriage took this chattel interest as joint-tenants (in which case the plaintiff would be entitled by survivorship to the whole of the moiety agreed to be settled on the issue,) or as tenants in common, in which latter case the children of the second marriage would be entitled along with the plaintiff, to a distributive share of Joseph the deceased child's portion.
Mr. George Moore and Mr. Smyly for the plaintiff. The principle upon which courts have proceeded in construing dispositions of this nature to be teñancies in common, and not joint-tenancies, is, a compliance with the supposed intent of the parties to the instrument; but the circumstances of this case negative any supposition that the parties intended such a construction. For, these articles are made upon the marriage of Wm. Taggart with Rebecca Finlow; a provision for the issue of that marriage was the only thing in contemplation, and that purpose would be fully answered by giving the plaintiff (the only surviving issue of that marriage) the whole by survivorship; whereas, a disposition entirely out of the contemplation and against the primary design of the parties must take place, if, by construing the words here to create a tenancy in common, the children of a second marriage are allowed to share with the issue of the first. But none of the authorities go so far as to say
that words such as the present shall be taken to import a tenancy in common ; Stratton v. Best, 2 Bro. C. C. 234 ; and,