The New Franking Act.-The Property Lawyer. shall be written thereon shall, for the purpose of exempting the letter from postage, actually be in the post town where such letter shall be put into the post office, or within twenty miles of such post town, on the day or on the day next before the day on which such letter shall be put into the post office. 10. Extent and conditions of privilege of 6th, 7th, 8th, and 9th classes. 11. As to offices named in the schedules. 12. Regulation of official privilege of franking in certain cases. 13. Franking officers required to transmit to the post office unprivileged letters sent to them. 253 the testator afterwards wrote to his brother that it was destroyed. The jury, with the concurrence of the judge, thought this a sufficient revocation of the will, and of this opinion was De Grey, C. J., and the whole Court, on a motion for a new trial, the C. J. observing that this case fell within two of the specific acts described by the statute of frauds; it was both a burning and tearing, and that throwing it into the fire with an intent to burn, though it was only very slightly singed and fell off, was sufficient within the statute. In a very late case, a will, after a quarrel, was thrown on the fire by the testator, and the defendant after a scuffle, rescued it from the fire. The will was produced at the trial, and bore no marks of fire or other injury, except that the back sheet which was blank, appeared, as the counsel for the plaintiff alleged, to have been removed, and 14. Rule for computing Postage on Letters beyond the Extent of Privilege.—That in case the number of letters allowed to a privileged person shall on any occasion be exceeded, so that the ordinary rates of postage shall become payable on the surplus number, the letters chargeable with the higher rate shall be included in the number exempted, in preference to those chargeable with a lower rate. 15. Postmaster empowered to examine pac-reattached to the rest of the will. E. T. dekets without a cover, or in a cover open at the sides. 16. Privileged persons empowered in certain cases to depute a person to exercise their privilege in their behalf. 17. Privilege of franking limited to general post letters. 18. Privilege of franking letters to and from the East Indies. THE PROPERTY LAWYER. CANCELLING A WILL. posed to having seen the parcel containing the will a little burnt at one of the corners. It was contended that these circumstances were sufficient to bring the case within the principle of Bibb v. Thomas. Patteson, J., left it to the jury, and told them that if they believed E. T.'s story, and that the testator threw the will upon the fire with the intention of destroying it, and that another person had taken it off, and the testator then had insisted upon destroying it, and she had promised to burn it but had not done so, that there was in law a revocation of the will. On a motion for a new trial, it was In the case of Bibb v. Thomas, 2 Blackst. 1043, it appeared in evidence, that the tes-held that this case did not come within the tator (who had frequently declared himself principle of Bibb v. Thomas. In that case, discontented with his will,) being one day said Lord Denman, C. J., the testator had in bed near the fire, ordered M. W., who slightly burnt and had also torn his will. attended him, to fetch his will, which she | The Court said that two of the acts required did, and delivered it to him, it being then by the statute were proved. If the question whole, only somewhat erased; that he had been entirely new, probably we might opened it, looked at it, then gave it a rip have considered the question as doubtful. with his hands, so as almost to tear a bit That case does not, however, show that an off, and then rumpled it together and threw intent to burn or tear is sufficient. Patteit into the fire, but it fell off; that it must son, J. said, "I am quite satisfied I was soon have been burnt had not M. W. taken wrong in my direction to the jury. When it up, which she did, and put it in her pock- Bibb v. Thomas was cited, I thought this et; that the testator did not see her take fell within the rule laid down in that case. it up, but seemed to have some suspicion of I did not see the distinction which has been it, as he asked her what she was at, to pointed out by my lord. There was somewhich she made little or no answer; that thing in Bibb v. Thomas, which the Court the testator several times afterwards said said was tearing." Williams J., and Colethat it was not and should not be his will, ridge J. concurred. Doe d. Reed v. Harris, and bid her destroy it; that she said at first 1 Nev. & Per. 405. See the new Wills "So I will when you have made another;" Act, 1 Vict. c. 26, which enacts that no will but afterwards upon his repeated inquiries, shall be revoked except, among other acts, she told him that she had destroyed it," by the burning, tearing, or otherwise though in fact it was never destroyed; and destroying the same, by the testator or 254 Notices of New Books: Best on the Right to Begin and Right to Reply. by some person in his presence, and by his | its application as influencing the rights of the direction, with the intention of revoking the same." Stewart's edition, p. 21. NOTICES OF NEW BOOKS. An Exposition of the Practice relative to the Right to Begin, and Right to Reply in Trials by Jury, and in Appeals at Quarter Sessions. By William M. Best, Esq., of Gray's Inn, Barrister at Law. London: Richards & Co., 1837. respective litigant parties to begin the case and give evidence in trials by jury, and in those cases before courts of quarter sessions in which they have peculiar jurisdiction, and may in a certain sense be considered to be sitting as a jury. And here it has been well observed, that the precision of allegation which is required by the English rules of special pleading, is particularly well calculated to ascertain the inthe respective parties; and the principles which cumbency of the proof, which is to be made by regulate the obligation of proof where strictness of pleading is required, may frequently assist in the exposition of the law, where the allegations are of a more general nature.'— 2 Ev. Poth. 143." This work treats, first, of the onus probandi, or burden of proof generally, comThe Author then treats of the general prising an explanation of the principles by rule that the burden of proof lies on the which it is regulated, both when there is party who asserts the affirmative; the and when there is not a presumption of law difference between negatives and negative in favor of the pleadings of one or both of averments; shewing that the affirmation the litigant parties. Secondly, an exposi- means affirmative in substance; the general tion of the practice relative to the right to nature of presumption; artificial or legal begin in trials by jury, both civil and crimi- presumptions, with the various other kinds ral, and in appeals at Quarter Sessions. of presumption; where the proof of the fact And thirdly, the practice relative to the lies within the peculiar knowledge of a right to reply in the three kinds of proceed-party; and he then deduces the following ings already mentioned. Mr. Best commences by stating the fol lowing general principles on the subject of the onus probandi. six rules. "1. Generally, the burthen of proof lies on the party who asserts the affirmative on the record. "2. The affirmative on the record means the affirmative in substance, and not the affirmative in form. Every controversy, legal or otherwise, must ultimately resolve itself into this, that there are some one or more points or facts "3. If there be a presumption of law in faasserted by one of the disputant parties, whichvour of the pleading of either party, the onus are denied or contested by the other. probandi is cast upon his adversary, even though he may thereby be called on to prove a negative. "Now the principles of natural reason clearly point out, that where there are no antecedent grounds for supposing the assertion or denial of one party more probable than the assertion or denial of the other, and where the means of proof are equally accessible to both, the party who asserts the fact or point in question should be expected to prove his assertion; the onus probandi or burden of proof is said to lie upon him, and the party who denies it ought not to be called on to give any reasons or evidence to prove the contrary, until the other has laid at least some probable grounds for inducing a belief of his position." "4. When there are conflicting presumptions, the onus probandi lies ou the party who has in his favour the weakest presumption of the two. "5. If the case of a party lies on the proof of some particular fact, of the truth or falsehood of which he must from its very nature be peculiarly cognisant, the onus of proving that fact lies on him. "6. And this last rule holds, even though there be a presumption of law in favour of his pleading. "This rule not only has its origin in the "To aid in the application of these may be very nature of things and grounds of our belief, subjoined the two tests already mentioned in when metaphysically considered, but is one this chapter. First, to conceive the affirinative the justice and convenience of which are so and negative allegations on which the issue has obvious to the human mind, that besides being been joined both struck out of the record, and acted upon in every well-regulated system of then consider which party would be entitled controversy and discussion, it has been incor- to succeed, as the onus probandi will lie on his porated into the jurisprudence of every en-adversary. Second, to consider which party lightened country, (although perhaps not expressed in the same words as above) and been from the earliest times recognised and adopted into our own. "Although this is a principle which pervades generally both our law and practice, yet in the present volume it is only proposed to consider would be entitled to succeed if no evidence at all were given on either side, as the onus probandi must lie on the opposite party." On the right to begin, Mr. Best states the subject as follows: "The rule regulating the right to begin is Notices of New Books: Best on the Right to Begin and Right to Reply. 255 sometimes expressed thus: that the party who which had been come to by all the Judges (6 although they agree in its general features, yet differ most materially in the extent which they attribute to it. In 6 C. & P. 64, the words of Tindul, C. J., are given thus: "The Judges have come to a resolution that justice would be better administered by altering the rule of practice, and that in future the plaintiff should begin in all actions for personal injuries, and also in libel and slander, notwithstanding the general issue may not be pleaded, and the affirmative be on the defendant. It is most reasonable that the plaintiff who brings his case into Court should be heard first to establish his complaint." In 1 M. & R. 281, it is thus: "A resolution has recently been come to by all the Judges, that in case of slander, libel, and other actions, where the plaintiff seeks to recover actual damages of an unascertained amount, he is entitled to begin, although the affirmative of the issue may, in point of form, be with the defendant." Owing to the discrepancy between these reports, we must endeavour to collect the extent of the rule from the cases which have been since decided in illustration of it; and although it is a matter of regret that those decisions are not by any means uniform, yet it is apprehended that by attentive consideration of them all, and keeping steadily in mind as a principle the propositions established by the decisions already quoted, the difficulties in defining the limits of the rule will be much diminished, if not altogether disappear. "In this rule two things are to be observed; first, that the onus probandi which influences the right to begin is the onus probandi as developed on the record; any shifting of the onus probandi after the case has been gone into cannot, of course, affect the present subject; it is the duty of the judge to examine the record, and see on whom the onus probandi lies there, and call upon that party to begin accordingly. But, secondly, it is to be remarked, that that party has only the prima fucie right to begin, as his adversary may (in most instances at least) get it from him by admitting his prima facie case, (Thwaites v. Swainsbury, 5 C. & P. 69.) For as it is a principle that the jury are only summoned to try matters in issue, and nothing else, any fact admitted on the record cannot be questioned, and no evidence is required to support it; and in like manner, if a party or his counsel makes any admission in open Court, no evidence ought to be given upon it; and if the admissions so made go to the full extent of recognizing the prima facie case of the adversary, i. e. go so far as to admit that in the absence of any evidence being adduced he is entitled to a verdict, it is evident that, accord- First, then, it seems quite clear that this ing to the principle laid down in the last chap-rule does not apply in any case whatever where ter, the onus probandi no longer lies upon him, the damages are either nominal, and the acand he ought not to be called on to begin. tion brought to try a right, or where they are But it must be carefully remarked, that in liquidated. This is indeed deducible from the order to obtain this, the above principle be very words of the rule, whichever report of it attended to, namely, that the party wishing be viewed as the correct one; but there have thus to shift the right to begin must admit the been also decided cases, bearing directly on the entire prima facie case of his adversary; the point." admitting important portions or facts of it will not suffice for this purpose." The author then proceeds to the classification of actions, and considers whether the mere onus of proving damages confers a right to begin. The rule laid down by the Judges in July 1833, is then stated. "This general principle being established, we will now proceed to consider the rule which was promulgated in the case of Carter v. Jones, by Tindal, Č. J. as the result of a resolution Under the head of right to reply, we extract the following statement of the general principle. "The general rule on this subject is thus very correctly stated in some old books: the counsel of the party which doth begin to maintain the issue, whether of plaintiff or defendant, ought to conclude.' (Vin. Ab. Evidence S. a. 7, cites L. E. 5, pl. 11; Trials per Pays, 220.) Accordingly it is immaterial whether the onus probandi and the right to begin originally lay on the party affirming or the party 256 Notices of New Books.-Proposed Standing Orders on Private Bills. denying, or whether that party were plaintiff of such statement. In that event the counsel or defendant; in any case he who begins ought to conclude. "This principle, like that which throws the burden of proof on the party who makes the affirmative allegation, is by no means confined to legal proceedings, or is anything arbitrary in its nature. We find it allowed in all discussions in parliament and elsewhere, that the proposer of any question or the opener of any discussion has a right to make a speech in reply after the opposite party has been heard, and it is based on this obvious principle of justice, that he who is heard first cannot possibly know what arguments will be urged, or what proofs will be resorted to, by the other side; and however ingenious those arguments or however plausible those proofs, still he may, if heard in reply, be able either to refute them altogether, or explain them in such a way as to render them consistent with the case he has in the first instance advocated." The book concludes with a statement of the practice to be observed on trials for felony, where the prisoner has counsel. This is taken from 7 Car. and P. 676, and is as follows: "At a meeting of twelve of the Judges for the purpose of choosing the spring circuits of 1837, (absentibus Littledale, Bosanquet, and Coleridge, JJ.) a discussion took place as to some points which were likely to occur at the assizes, in consequence of the recent act, 6 & 7 W. 4. c. 114, for allowing prisoners indicted for felony to make full defence by counsel; and the following seemed to be the course of practice which the Judges present thought it would be most advisable to adopt. for the prisoner may proceed with his crossexamination, and if the witness admits such statement to have been made, he may comment on such omission, or upon the effect of it upon the other part of his testimony; or if the witness denies that he made such a statement, the counsel for the prisoner may then, if such statement be material to the matter in issue, cail witnesses to prove that he made such statement. But in either event, the reading of the deposition is the prisoner's evidence, and the counsel for the prosecution will be entitled to reply. "4. If the only evidence called on the part of the prisoner is evidence to character, although the counsel for the prosecution is entitled to the reply, it will be a matter for his discretion whether he will use it or not. Cases may occur in which it may be fit and proper to do so. "5. In cases of public prosecutions for fethe crown, and hose who represent them, are lony, instituted by the crown, the law officers of in strictness entitled to reply, although no evidence is produced on the part of the prisoner." We have thus given a full analysis of the contents of the volume, bearing, as it will be observed, on a subject of considerable practical importance. Mr. Best has treated it with clearness and precision, and arranged his materials with skill and judgment. PROPOSED STANDING ORDERS [Continued from p. 245.] "1. Where a witness for the crown has made a deposition before a magistrate, he can- 20-That every such bill, as amended by not, on his cross-examination by the prisoner's the committee, be printed, at the expense of counsel, be asked, whether he did or did not the parties applying for the same; and be dein his deposition make such or such a state-livered to the doorkeepers for the use of the ment, until the deposition itself has been read, in order to manifest whether such statement is or is not contained therein; and that such deposition must be read as part of the evidence of the cross-examining counsel. members, three clear days at least before such report shall be taken into consideration. 21.-That the committee to whom any petition or private bill relating to Scotland shall be referred, may admit proof of the compliance "2. After such deposition has been read, with the standing orders of this house, and of the prisoner's counsel may proceed in his cross- the consents of parties concerned in interest in examination of the witness as to any supposed such private bill, on the production of affidacontradiction or variance between the testimony vits sworn before any sheriff depute or his of the witness in Court and his former deposi-substitute there; whose certificate shall be adtion; after which the counsel for the prosecution may re-examine the witness, and after the prisoner's counsel has addressed the jury, will be entitled to reply. And in case the counsel for the prisoner comments on any supposed variance or contradiction, without having read the deposition, the Court may direct it to be read, and the counsel for the prosecution will be entitled to reply upon it. "3. The witness cannot in cross-examination be compelled to answer whether he did or did not make such or such a statement before the magistrate, until after his deposition has been read, and it appears that it contains no mention mitted as evidence of such proof having been made, unless the committee shall require further evidence. 22.-That the committee to whom any petition or private bill relating to Ireland shall be referred, may admit proof of the complinace with the standing orders of this house, and of the consents of parties concerned in interest in such private bill. on the production of affidavits sworn before any assistant barrister of that part of the united Kingdom, whose certificate shall be admitted as evidence of such proof having been made, unless the committee shall require further evidence. Proposed Standing Orders on Private Bills.- Law of Wills. 23. That in all other instances, the committee to whom any petition or private bill shall be referred, may admit proof of the consents of parties concerned in interest in such private bill, on the production of certificates in writing of such parties, whose signature to such certificate shall be proved by one or more witnesses, unless the committee shall require further evidence. 24.-That a committee be appointed, to be called "The Committee of Appeals upon Private Bills," which committee shall consist of all the Knights of the Shire, all the members for cities, and such other members as may be named therein, so that the whole number ap. pointed to serve upon such committee shall amount to two hundred at least. 257 parties, one clear day before such bond or obligation shall be entered into. 28. That whenever any such petition shall have been referred to such select committee, the house shall fix a day whereon to ballot for a select committee; upon which day at a quarter past four of the clock, or as near thereto as the question which may be then before the house will permit, the speaker shall order the doors of the house to be locked ; and the names of the members composing the committee of appeals upon private bills being written upon separate pieces of paper, and put into the glass, the clerk shall draw therefrom the names, until seven members of such committee, who shall be then present, and who shall not have voted at the committee upon the private bill to 25.-That where any party interested in a which the petition refers, or shall not be exprivate bill, who shall have appeared in sup-cused by the house, shall have answered to port of his petition, by himself, his counsel or agent, in the committee upon such bill, or where the promoters of a private bill shall be dissatisfied with any vote of the committee upon such bill, and shall petition the house, setting forth the particular vote or votes objected to, and praying that they may be heard by themselves, their counsel or agent, against such vote or votes, the house shall, if they so think fit, refer such petition, together with the report of the committee upon the bill, and the minutes and evidence taken before such committee, to a select committee of seven members of the house, to be chosen by ballot from the committee of appeals upon private bills, which select committee shall hear the arguments of the parties complaining of, and also of the parties supporting, such vote or votes, and shall report their opinion thereon to the house. their names; which seven members shall be the select committee to which such petition shall be referred; and such select committee shall meet for business the following day at eleven o'clock, and continue to sit, de die in diem, until they have reported upon the same; and that only one counsel or agent shall be heard in support of any one party. 29. That no member of the said select committee shall be allowed to absent himself from the same without leave obtained from the house, or an excuse allowed by the house at the next sitting thereof, on special cause shewn; and that the said select committee shall never sit until all the members to whom such leave has not been granted, nor excuse allowed, are met; and in case they shall not all meet within one hour after the time to which the said select committee shall have been adjourned, a further adjournment shall be made in the manner as before directed, and reported, with the cause thereof, to the house. [To be continued.] THE AMENDMENT OF THE 26.-That before any petition praying for a commitiee of appeal shall be presented to the house, the petitioner, or any one of the petitioners in case there be more than one, shall enter into a bond or obligation to the agent or agents, or some person named for that purpose by the agent or agents of the opposite party or ON parties, in the penal sum of five hundred pounds, and with two sufficient sureties, in the penal sum of two hundred and fifty ponnds each, conditional, to be void in case the said petitioner or petitioners shall duly pay all costs, charges, and expences of the party or parties who shall appear before the house, and any committee, in opposition to such petition, (such costs, charges, and expenses to be found and assessed by the clerk, or one of the clerks as- The marginal note opposite sec. 23, and the sistant of this house,) in case the said select analysis also referring to that section, convey, committee shall report to the house that the to my mind, an erroneous impression; at least said petition appeared to them to be frivo-I think so, for on reading Mr. S.'s remarks, I lous and vexations. To The Editor of The Legal Observer. As I conceive that Mr. Stewart, in his pam phlet just published on Lord Langdale's Act, has misstated a very material point, I beg leave to call your attention to it. am led to the conclusion that a subsequent 27. That the sufficiency of the sureties, and conveyance of property included in a prior of the form of the bond, shall be examined devise, would not annul the will pro tanto. into and determined by the clerk or one of the This I apprehend is incorrect, for it seems to clerks assistant of this house: and that theme that all which is enacted by sec. 23, is, names, together with the additions and usual places of residence, of the persons who are proposed as such sureties, be delivered in writing by the agent for the petitioner or petitioners, to the agent for the opposite party or that no conveyance subsequent to a will of the same property, shall be allowed to revoke the will in toto, but that such will shall be operative upon such of the property comprised therein as may be extant at the testator's |