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The New Franking Act.The Property Lawyer.


shall be written thereon shall, for the purpose the testator afterwards wrote to his brother of exempting the letter from postage, actually that it was destroyed. The jury, with the be in the post town where such letter shall be

e concurrence of the judge, thought this a put into the post office, or within twenty miles

Si sufficient revocation of the will, and of this of such post town, on the day or on the day next before the day on which such letter shall opinion was

tter shall opinion was De Grey, C. J., and the whole be put into the post office.

Court, on a motion for a new trial, the C. J. 10. Extent and conditions of privilege of observing that this case fell within two of 6th, 7th, 8th, and 9th classes.

the specific acts described by the statute of 11. As to offices named in the schedules.

| frauds; it was both a burning and tearing, 12. Regulation of official privilege of frank

and that throwing it into the fire with an ing in certain cases. 13. Franking officers required to transmit

intent to burn, though it was only very to the post office unprivileged letters sent to

slightly singed and fell off, was sufficient them.

within the statute. 14. Rule for computing Postuge on Letters In a very late case, a will, after a quarrel, beyond the Extent of Privilege.-That in case was thrown on the fire by the testator, and the number of letters allowed to a privileged the defendant after a scuffle, rescued it person shall on any occasion be exceeded, so from the fire. The will was produced at ihat the ordinary rates of postage shall become payable on the surplus number, the letters

the trial, and bore no marks of fire or other chargeable with the higher rate shall be in-injury, except that the back sheet which cluded in the number exempted, in preference was blank, appeared, as the counsel for the to those chargeable with a lower rate.

plaintiff alleged, to have been removed, and 15. Postmaster empowered to examine pac- reattached to the rest of the will. E. T. de. kets without a cover, or in a cover open at posed to having seen the parcel containing the sides.

the will a little burnt at one of the corners. 16. Privileged persons empowered in certain

It was contended that these circumstances cases to depute a person to exercise their privilege in their behalf.

were sufficient to bring the case within the 17. Privilege of franking liunited to general principle of Bibb v. Thomas. Patteson, J., post letters.

left it to the jury, and told them that if they 18. Privilege of franking letters to and from | believed E. T.'s story, and that the testator the East Indies.

threw the will upon the fire with the inten

tion of destroying it, and that another perTHE PROPERTY LAWYER.

son 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, CANCELLING A WILL.

that there was in law a revocation of the In the case of Bibb v. Thomas, 2 Blackst. will. On a motion for a new trial, it was 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 respective litigant parties to begin the case and the same.” Stewart's edition, p. 21.

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 NOTICES OF NEW BOOKS.

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 An Exposition of the Practice relative to by the English rules of special pleading, is parthe Right to Begin, and Right to Reply

ticularly well calculated to ascertain the inin Trials by Jury, and in Appeals at

cumbency of the proof, which is to be inade by

the respective parties; and the principles whicla Quarter Sessions. By William M. I regulate the obligation of proof where strictBest, Esq., of Gray's Inn, Barristerness of pleading is required, may frequently at Law. London : Richards & Co., assist in the exposition of the law, where the 1837.

allegations are of a more general nature.'

2 Ev. Poth. 143.” This work treats, first, of the onus probandi, or burden of proof generally, com

The Author then treats of the general prising an explanation of the principles by rule that the

princibles 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 cal, 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.

six rules. Mr. Best commences by stating the foll“). Generally, the burthen of proof lies on lowing general principles on the subject of the party who asserts the affirmative on the

record. the onus probandi.

“2. The affirmative on the record ineans " Every controversy, legal or otherwise, the affirmative in substance, and not the affirmust ultimately resolve itself into this, that mative in form. there are some one or more points or facts L “3. If there be a presumption of law in faasserted by one of the disputant parties, which vour of the pleading of either party, the onus are denied or contested loy the other.

probundi is cast upon bis adversary, even though “ Now the principles of natural reason he may thereby be called on to prove a negaclearly point out, that where there are no an- tive, tecedent grounds for supposing the assertion “4. When there are conflicting presumpor denial of one party more probable than the tions, the unus probandi lies on the party who assertion or denial of the other, and where the has in his favour the weakest presumption of means of proof are equally accessible to both, the two. the party who asseris the fact or point in ques. “5. If the case of a party lies on the proof tion should be expected to prove his assertion; of some particular fact, of the truth or falsethe onus probandi or burden of proof is said to hood of which he must from its very nature be lie upon him, and the party who denies it ought | peculiarly cognisant, the onus of proving that not to be called on to give any reasons or | fact lies on him. evidence to prove the contrary, until the other “6. And this last rule holds, even though has laid at least some probable grounds for there be a presumption of law in favour of his inducing a belief of his position.”

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 atfirinative 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 ex. would be entitled to succeed if no evidence at pressed in the saine words as above) and been all were given on either side, as the onus prvfrom the earliest times recognised and adopted bundi must lie on the opposite party.” into our own. “Although this is a principle which pervades

doel On the right to begin, Mr. Best states the generally both our law and practice, yet in the subject as follows : present volume it is only proposed to consider "The rule regulating the right to begin is

Notices of New Books : Best on the Right to Begin and Right to Reply.


sometimes expressed thus: that the party who, which had been come to by all the Judges (6 asserts the affirmative of the issue has a right C. & P. 64; I M. & R. 281, July 6, 1833.) to begin. (Litt. R. 36, 3 Car. 1; R. v. Yrales, | This may be considered as a species of statute ic. & P.323, April 5, 1824; Fourler v. Custer, law on the subject, for all cases not coming M. & M. 241, 3 C. & P. 463, Dec. 5, 1828 ; within this new regulation are still governed by Filliams v. Thomas, 4 C. & P. 234, April 6, the principles above established, (Burrel v. 1830; Lewis v. Wells, 7 C. & P. 221, April 3, Nicholson, C. & P. 202; 1 M. & R. 304, Dec. 1835.) It has been thus enunciated through 9, 1833; Reeve v Underhill, 6 C. & P. 773; mere inadvertence, for although this may be I M. & R. 440, Dec. 12, 1834 ; Lewis v. Wells, true as a general principle, it is very far from 7 C. & P. 221, April 3, 1835; Wooton v. Barpossessing that universality and precision of lon, 1 M. & R. 518, Dec. 14, 1835.) The rule which the subject is susceptible; generally | in question was not promulgated by writing, speaking, it is true that the party who asserts and unfortunately the two reports which we the affirmative of the issue has the onus pro- have of the case in which it was first mentioned, bandi upon him; but this is far from being although they agree in its general features, yet always the case, as was shown in the last chap- differ most materially in the extent which they ter. "It would be more correct to say, and it attribute to it. In 6 C. & P. 64, the words of is the undoubted rule ou the subject, that Tindul, C. J., are given thus : “ The Judges the party on whom the onus probundi on the have come to a resolution that justice would record lies, has generally and prima facie a be better administered by altering the rule of right to begin.

practice, and that in future the plaintiff should "In this rule two things are to be observed ; begin in all actions for personal injuries, and first, that the onus probundi which influences also in libel and slander, notwithstanding the the right to begin is the onus probandi as de- general issue may not be pleaded, and the affirveloped on the record; any shifting of the inative be on the defendant. It is most reasononus probandi after the case has been gone into able that the plaintiff who brings his case into cannot, of course, affect the present subject; Court should be heard first to establish his comit is the duty of the judge to examine the plaint.” In 1 M. & R. 281, it is thus: “A record, and see on whom the onus probandi resolution has recently been come to by all the lies there, and call upon that party to begin Judges, that in case of slander, libel, and other accordingly. But, secondly, it is to be re-actions, where the plaintiff seeks to recover marked, that that party has only the prima actual damages of an unascertained amount, fucie right to begin, as his adversary may (in he is entitled to begin, although the affirmative most instances at least) get it from him by ad- of the issue may, in point of form, be with the mitting his prima facie case, (Thwaites v. defendant.” Owing to the discrepancy beSrainsbury, 5 C. & P. 69.) For as it is a prin-tween these reports, we must endeavour to ciple that the jury are only summoned to try collect the extent of the rule from the cases matters in issue, and nothing else, any fact which have been since decided in illustration admitted on the record cannot be questioned, of it; and although it is a matter of regret and no evidence is required to support it; and that those decisions are not by any means uniin like manner, if a party or his counsel form, yet it is apprehended that by attentive makes any adıission in open Court, no evi- consideration of them all, and keeping steadily dence ought to be given upon it, and if the in mind as a principle the propositions estabadmissions so made go to the full extent of lished by the decisions already quoted, the recognizing the prima facie case of the adver-difficulties in defining the limits of the rule sary, i. e. go so far as to admit that in the will be much diininished, if not altogether disabsence of any evidence being adduced he is appear. 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 longcr lies upon hiin, the damages are either noininal, 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 fucie case of his adversary; the point.” admitting important portions or facts of it will

Under the head of right to reply, we exnot suffice for this purpose.”

tract the following statement of the general The author then proceeds to the classifi- principle. cation of actions, and considers whether the “The general rule on this subject is thus mere onus of proving damages confers a very correctly stated in some old books : 'the right to begin. The rule laid down by the counsel of the party which doth begin to mainJudges in July 1833, is then stated.

tain the issue, whether of plaintiff or defen

dant, ought to conclude.' (Vin. Ab. Evidence "This general principle being established, S. a. 7, cites L. E. 5, pl. 11; Trials per Pays, we will now proceed to consider the rule which 220.) Accordingly it is immaterial whether was promulgated in the case of Carter y. Jones, the onus probandi and the right to begin oriby Tindal, Č. J. as the result of a resolution ginally lay on the party affirming or the party


Notices of New Bcoks.-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 for the prisoner may proceed with his crossought to conclude.

examination, and if the witness admits such * This principle, like that which throws the statement to have been made, he may comment burden of proof on the party who makes the on such omission, or upon the effect of it upon affirmative allegation, is by no ineans confined the other part of his testimony; or if the to legal proceedings, or is anything arbitrary in witness denies that he inade such a statement, its nature. We find it allowed in all discus- the counsel for the prisoner may then, if such sions in parliament and elsewhere, that the statement he material to the matter in issue, proposer of any question or the opener of any cail witnesses to prove that he made such discussion has a right to make a speech in statement. But in either event, the reading of reply after the opposite party has been beard, the deposition is the prisoner's evidence, and and it is based on this obvious principle of the counsel for the prosecution will be entitled justice, that he who is heard first cannot pos- to reply. sibly know what arguments will be urged, or “4. If the only evidence called on the part what proofs will be resorted to, by the other of the prisoner is evidence to character, alside ; and however ingenious thuse arguments though the counsel for the prosecution is or however plausible those proofs, still he may, entitled to the reply, it will be a matter for his if heard in reply, be able either to refute them discretion whether he will use it or not. Cases altogether, or explain them in such a way as may occur in which it may be fit and proper to to render thein consistent with the case he has do 80. in the first instance advocated.”

“ 5. In cases of public prosecutions for feThe book concludes with a statement of the crown, and hose who represent them, are

lony, instituted by the crown, the law officers of the practice to be observed on trials for in strictness entitled to reply, although no felony, where the prisoner has counsel. evidence is produced on the part of the priThis is taken from 7 Car. and P. 676, and soner.” is as follows:

1 We have thus given a full analysis of the “Ata meeting of twelve of the Judges for the contents of the volume, bearing, as it will be purpose of choosing the spring circuits of 1837, I observed, on a subject of considerable prac(absentibus Lillledale, Bosanguet, and Cole-tical importance. Mr. Best has treated it ridge, JJ.) a discussion took place as to some with clearness and precision, and arranged points which were likely to occur at the as- his materials with skill and judgment. sizes, 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

PROPOSED STANDING ORDERS practice which the Judges present thought it

ON PRIVATE BILLS. would be most advisable to adopt. “1. Where a witness for the crown has

[Continued from p. 245.] made a deposition before a magistrate, le can- 20.- That every such bill, as amended by not, on his cross-exainination 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 de. in 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. members, three clear days at least before such in order to manifest whether such stateinent is report shall be taken into consideration. or is not contained therein; and that such de- ! 21.–That the cominittee to whom any peposition must be read as part of the evidence tition or private bill relating to Scotland shall of the cross-examining counsel.

be referred, may admit proof of the compliance ?. 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 tKere; whose certificate shall be adtion; after which she counsel for the prosecu- mitted as evidence of such proof having been tion may re-examine the witness, and after the made, unless the committee shall require furprisoner's counsel has addressed the jury, will ther evidence. be entitled to reply. And in case the counsel 22.-That the committee to whom any pefor the prisoner comments on any supposed tition or private bill relating to Ireland shall 'variance or contradiction, without having read be referred, may admit proof of the complinace the deposition, the Court may direci it to be with the standing orders of this house, and of read, and the counsel for the prosecution will the consents of parties concerned in interest be entitled to reply upon it.

in such private bill, on the production of 3. The witness cannot in cross-examination affidavits sworn before any assistant barrister be compelled to answer whether he did or did of that part of the united Kingdom, whose not make such or such a statement before the certificate shall be admitted as evidence of such magistrate, until after his deposition has been proof having been made, unless the committee read, and it appears that it contains no mention shall require further evidence. •

Proposed Standing Orders on Private Bills.- Law of Wills.


23.—That in all other instances, the com- parties, one clear day before such bond or mittee to whom any petition or private bill obligation shall be entered into. shall be referred, may admit proof of the con- 28.—That whenever any such petition shall sents of parties concerned in interest in such have been referred to such select committee, private bill, on the production of certificates the house shall fix a day whereon to ballot for in writing of such parties, whose sigpature to a select committee; upon which day at a quarsuch certificate shall be proved by one or more ter past four of the clock, or as near thereto witnesses, unless the committee shall require as the question which may be then before the further evidence.

house will permit, the speaker shall order the 24.-That a committee be appointed, to be doors of the house to be locked ; and the names called “ The Committee of Appeals upon Pric of the members composing the committee vate Bills; ” which committee shall consist of of appeals upon private bills being written all the Knights of the Shire, all the members upon separate pieces of paper, and put into the for cities, and such other members as may be glass, the clerk shall draw therefrom the names, named therein, so that the whole number ap. until seven members of such comnittee, who pointed to serve upon such committee shall shall be then present, and who shall not have amount to two hundred at least.

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 their names ; which seven members shall be agent, in the committee upon such bill, or the select committee to which such petition where the promoters of a private bill shall be shall be referred; and such select committee dissatisfied with any vote of the committee shall meet for business the following day at upon such bill, and shall petition the house, eleven o'clock, and continue to sit, de die in setting forth the particular vote or votes objec- diem, until they have reported upon the same; ted to, and praying that they may be heard and that only one counsel or agent shall be by themselves, their counsel or agent, against heard in support of any one party. such vote or votes, the house shall, if they so 29. That no member of the said select think fit, refer such petition, together with committee shall be allowed to absent himself the report of the committee upon the bill, and from the same without leave obtained from the minutes and evidence taken before such the house, or an excuse allowed by the house committee, to a select committee of seven at the next sitting thereof, on special cause members of the house, to be chosen by ballot shewn; and that the said select committee from the committee of appeals upon private shall never sit until all the members to whom bills, which select committee shall hear the such leave has not been granted, nor excuse arguments of the parties complaining of, and allowed, are met; and in case they shall not also of the parties supporting, such vote or all meet within one hour after the time to votes, and shall report their opinion thereon to which the said select committee shall have the house.

been adjourned, a further adjournment shall 26.—That before any petition praying for be made in the manner as before directed, a commitiee of appeal shall be presented to the and reported, with the cause thereof, to the house, the petitioner, or any one of the peti- house. tioners in case there be more than one, shall

[To he continued.] . 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 THE AMENDMENT OF THE parties, in the penal sum of five hundred |

LAW OF WILLS. pouvds, and with two sufficient sureties, in the penal sum of two hundred and fifty ponnds each, conditional, to be void in case the said

To The Editor of The Legal Observer. petitioner or petitioners shall duly pay all costs,

Sir, charges, and expences of the party or parties 1 As I conceive that Mr. Stewart, in his pam. who shall appear before the house, and any phlet just published on Lord Langdale's Act, committee, in opposizion to such petition, (such has misstated a very material point, I beg leave costs, charges, and expenses to be found and to call your attention to it. 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.

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 hond, 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 the me that all which is enacted by sec. 23, is, names, together with the additions and usual that 110 conveyance subsequent to a will of the places of residence, of the persons who are same property, shall be allowed to revoke the proposed as such sureties, be delivered in will in toto, but that such will shall be operawriting by the agent for the petitioner or pe tive upon such of the property comprised titioners, to the agent for the opposite party or therein as may be extant at the testator's

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