THE SYSTEM OF REVISING VOTES | stitution that the Judges of the Land were UNDER THE REFORM ACT.

We have repeatedly called the attention of our readers to the present system of revising votes for members of parliament, and the present seems a fit occasion for renewing the subject. The Revising Barristers are now hard at work all over the kingdom, delivering long and no doubt (to the extent of their experience and ability) luminous judgments, and in these dull times the newspapers give them " ample

to have little or no patronage vested in them. No Common Law Judge has had, until lately, anything worth mentioning to give away. The Bar respected and looked up to the Bench, not as the dispenser of the good things of office, but simply in Hitherto the their characters as Judges. Bar-even the lowest junior in Court- had nothing to gain from the Bench—there was no room for subserviency, and there could be no suspicion of it. The character of the Judge was in fact determined by the profession, and he went forth to the public verge and scope enough." We have ala good or a bad one, according to their opiready from time to time given our reasons nion. This we consider was attended with for opposing the existing plan; and in- great advantages to the profession and the stead of repeating them, we merely pur- public. It was in this that an efficient pose adverting to some points respecting it controul was kept over the Bench. No which have not before been touched upon. Judge was ever strong enough to set the In the first place, then, we believe that Bar at defiance, or act against its opinion. this part of the Reform Act was never in- He was always anxious to gain and pretended by its framers to be final-it was serve its good opinion, and thus it is that merely proposed as a convenient mode of we have found Judges laborious and painssettling the new registers under the act in taking-striving to the utmost of their abithe first instance. In the Municipal Cor-lities to fulfil the duties of their office. poration Act the aid of the Revising Bar- But once give the Judges patronage, risters was demanded for the first year, open to the Bar, and all this is broken and the lists, once settled, were handed over down. Lawyers are, after all, but men. At to other persons ever afterwards; so the Reform Act was intended to call into exist-present, if they do not work, they know

ence this numerous corps as a machinery
ready at hand, but no one ever thought that
they were to be employed perpetually.

"A breath unmakes them, as a breath
hath made."

But no doubt the great difficulty which stands in the way of any change is the question of patronage. Where can the appointments be placed? We have only to answer to this, that we object to its remaining where it is. It has long, we conceive, been a settled principle of the con

VOL. XIV.-No. 421.

way

they must starve, so far as professional gains are concerned. But shew them that they can get on in their profession in any other way; that they can get the first steps by other means than their own exertions, and assuredly they will try the easier way. Contingent remainders and common law pleading, however disguised, are a bitter draught. If a young man finds out, or even supposes, that he can gain some advantage in his profession by courting the smile of a Judge instead of reading twelve hours a day, he will generally prefer it. Now a

394

Revising Votes under the Reform Act.-The Feudal System.

Revising Barristership is a sort of profes- | competent men left undone. Thus we ber sional go-cart. It is confessedly situa- lieve would it be if eight or ten men were tion that any one, however inexperienced, appointed to revise, instead of the present may hold. It may serve as an introduc- unlimited number. tion-it may, as it is called, “bring a young man into notice "-it may smooth early difficulties-pay circuit expenses, &c. This being the case, (and indeed we are merely giving the common talk on this subject,) we firmly believe that the great harm may result from it of rendering the Bar subservient to the Bench.

THE FEUDAL SYSTEM.

How often havé

THE Feudal System!
these words made the student's heart ache
Fifty years ago every thing was resolvable
into it. The feudal system was looked
upon as the origin of all the settled insti
tutions of Europe. Every principle was
endeavoured to be traced back to this great
fountain, and every writer, especially every
legal writer, looked to it as the key to his
knowledge of the laws of property. This
spirit pervaded Blackstone, when he wrote!
his Commentaries, in no ordinary: degree.
Coming fresh from the elder writers, ande
imbued with their learning, he was too
fond of looking to what could be done ac.
cording to the principles of the feudal sys-
tem only, not considering that these were
very much modified even in his day. Not R
being a practical conveyancer, he was not
aware how much these principles had given
way, even at that time, before the neces-
sities and demands of society, and how
greatly the Courts, especially the Courts of
Equity, leaned against them.

It may be said, that there will always be enough Barristers in every Court to keep the Bench in order. We do not think so. The leaders will not want these little places for themselves; but they may have sons, or relations, or almost always friends and protegès who do. The juniors are all avowedly on the look out for them. They are watch ing the looks and words of the Judge on this express account. In dining with him as usual, the fine manly feeling of independence will fast melt away; they will laugh at the learned Judge's worst joke with counterfeited glee; they will watch his nod with studious alacrity; and in Court they will no longer be intent on the interests of their client, but will be considering how they may best please the Bench. We are doing no injustice to the Bar in this. For independence we place them, at present, higher than any other body in the state; but they are subject to the infirmities of human nature. They are at present above The feudal system therefore need no suspicion; but they will not long continue longer be a bugbear to the student. It is so, if this extensive patronage is long imperceptibly melting away, and the docvested in the Judges. For the sake of the trine of uses and trusts is firmly established Bench, who, we believe, would gladly dis-on its ruins. pense with it; for the sake of the Bar, who will be greatly injured by it; and for the sake of the public at large, we would gladly see it vested in almost any other hands.

If the difficulty of patronage be disposed of, we consider that there cannot be much difficulty in the other points of the question. Surely ten competent and impartial persons can be found to discharge the duty of revising votes; if they devote their whole time to it, they must be better able to dispose of the business satisfactorily than if they merely took it up occasionally; there is a better chance of a uniformity of opinion in ten than in two hundred men. These are all truisms. It may be said that the present body, though not so efficient, is more numerous. We have before instanced the Commissioners of Bankrupts. Six competent men now do easily what seventy in

Mr. Stewart, in his recent useful work, founded on Blackstone, is evidently of this opinion.

It will be seen," he says in the Introduction, "that very little reference to the feudal system has been preserved. It has ' been endeavoured to adapt the work to the present law; and it is to be remembered that scarcely any part of that system now remains. This change has been working for the last three hundred years, and may be said to be nearly completed. The introduction of the Statute of Uses, in the reign of Henry the Eighth-the great alterations in the Law of Tenures, which were made in the reign of Charles the Secondand lastly, the acts founded on the reports of the Real Property Commissioners, passed in the reign of the present King [William the Fourth], more especially the acts relating to Inheritance and Escheat,-have

The Feudal System.-Notes on Equity.

left scarcely a vestige of the law of feuds remaining."

This, we think, is satisfactorily made out in the course of his work. Thus, for practical purposes, enough is told us in the following passage of the principle of tenure now prevailing in this country, although whole volumes have been written on the subject.

395

Then again the little that remained of the feudal system has been almost entirely swept away by the acts relating to descent and escheat. The old rules were perhaps in some cases, by a forced construction, all traced up to this system; but they have been now revised, and rendered consistent with common sense.

If therefore we are addressing any student who stands on the threshhold of the law, let him not be deterred from entering it by the fear of any difficulty on this ground. The law of property is now pretty much what it should be. If we would point to any portion of it which still requires the attention of the legislature, we would say that the law of tenure might be still further simplified by reducing all kinds of land into common socage or freeholds, and by still further facilitating the transfer of real pro

"By the policy of our laws, originally derived from the feudal system, almost all the real property of this kingdom is supposed to be granted by, dependent upon, and holden of, some superior lord, by and in consideration of certain services to be rendered to the lord by the tenant or possessor of this property. The thing holden is therefore stiled a tenement, the possessors thereof tenants, and the manner of their possession a tenure. Thus all the land in the kingdom is supposed to be holden me-perty; but the absurd and barbarous rules diately or immediately of the King, who is of the feudal system no longer incumber stiled the lord paramount, or above all; and either the study or practice of conveyancthis principle of law it is not intended to ing. disturb." "a

"b

-The different kinds of tenure require greater space to explain, although we have a clue to this labrynth if we set out with remembering that "all lay tenures are in effect reduced to two divisions, free tenure in common socage, and base tenure by copy of court roll, called copyhold.' In the learning of estates, still less knowledge of the subtleties of the feudal system is necessary. An estate in fee is strictly a pure feudal estate, in contradistinction to an allodial estate. The "feodum, or fee, is that which is held of some superior, on condition of rendering him service; in which superior the ultimate property of the land resides;" and the allodium is defined to be "every man's own land, which he possesseth merely in his own right, without owing any rent or service to any superior." And it is proper that this distinction should be known: but this acceptation of the word fee is not the one in which it is usually received; for "the doctrine that all lands are holden having been for so many ages a fixed and undeniable axiom, our English lawyers do very rarely (of late years especially) use the word fee in this its primary original sense, in contradistinction to allodium, or absolute property with which they have no concern, but generally use it to express the continuance or quantity of estate.c A fee therefore is to be taken in its secondary, and not in its feudal sense.

NOTES ON EQUITY.

REVIVOR FOR COSTS.

Ir is a well known rule of equity practice that there can be no revivor for costs; Hall V. Smith, 1 Bro. C. C. 438; Jenour v. Jenour, 10 Ves. 562; Lowten v. Corporation of Colchester, 2 Mer. 113; Morgan v. Scudamore, 2 Ves. jun. 313, and 3 Ibid. 195; Jupp v. Gearing, 5 Madd. 375; but there are exceptions to this rule.

Thus where the plaintiff's solicitor, at the request of the defendant's solicitor, agreed to postpone the taxation of costs decreed to be paid up to the plaintiff on an undertaking that the plaintiff should not be prejudiced thereby; before the costs were taxed the plaintiff died; and the Vice Chancellor held that his executors were entitled to revive the suit for the costs.

The plea," said the Vice Chancellor, "is to so much of the bill as prays that the original suit and the proceedings therein may be revived; and therefore the defendants ought not to have answered to that part of the bill which prays that the master may make his report or certificate nunc pro tunc, and date it before the death of the plaintiff in the original suit; for the master cannot make his report and date it before the death of the plaintiff without making a report in an abated suit, which cannot be done; for no proceeding can be taken in 2 C 2

that suit until it is revived. The plea pur-alone, and as the only one in which the poses to extend to every proceeding in the plaintiff' has been successful. The defence original suit; but at the same time the de- to the action in that case was, as is not fendants have answered as to a particular uncommon, foreign and contrary to the proceeding in that suit. Besides, what is merits, and succeeded upon a merely techstated to have taken place between the nical objection; and this it was, in subparties amounts in effect to an agreement stance, which induced the Court to grant that the suit should be revived. On both the plaintiff's application. grounds, therefore, the plea is bad."Tucker v. Wilkins, 7 Sim. 349.

The action was an action for money had and received, and was brought to recover a sum of money which the defendant had received from an insurance office, on a policy of insurance which the defendant had effected, in his own name indeed, on the life of

OF THE EQUITABLE CLAIM OF the plaintiff's testator, and in which he
PLAINTIFFS, SUING AS EXECU-admitted that he had no interest.
TORS OR ADMINISTRATORS, TO Mr. Justice Park, in delivering judg
BE RELIEVED FROM COSTS.

It is well known that the statute of the 23 Hen. 8, c. 15, which made plaintiffs liable to costs, was so peculiar in its terms as not to extend to plaintiffs who sued as executors or administrators on a contract made with their testator or intestate. It is equally well known as an historical fact, that the object of the 3 & 4 W. 4, c. 42, s. 31, was to deprive them of this advantage, and to place them under the ordinary liability; and accordingly the latter enactment is as follows:

That in every action brought by any executor or administrator in right of the testator or intestate, such executor or administrator shall, unless the Court in which such action is brought, or a Judge of any of the said Superior Courts, shall otherwise order, be liable to pay costs to the defendant in case of being nonsuited or a verdict passing against the plaintiff, and in all other cases in which he would be liable if such plaintiff were suing in his own right upon a cause of action accruing to himself; and the defendant shall have judgment for such costs, and they shall be recovered in like manner."

ment, stated the following grounds for exempting the plaintiff from costs :-"What are the circumstances of this case? The testator had desired the defendant to effect a policy of insurance for him upon his life, which the defendant did in his own name. Till Mr. Gardenier died, therefore, no money was due from the insurance office, and Mr. Barrow owed the testator nothing. But upon his death, the defendant, in whose name the policy was effected, received 20001., and he was the only person to whom the office would pay, and then an implied contract took place to pay the executors of the testator that money which the defendant has admitted he received, and to the possession of which he had no right. The plaintiffs could only sue in their representative character; for no contract was made with them individually, but only as representing their testator. Still the new statute would impose costs, if the Court should not interpose. We are of opinion that the plaintiffs ought not to pay costs. One main point to consider is, Was this a frivolous action? So far from it, it appears from the affidavit that it was the bounden duty of the plaintiffs to the estate of the testator to bring an action: the defendant claimed no interest in the matter, and frequently declared he should not defend the cause: the plaintiff's were defeated upon a ground which they could not be supposed to apprehend."

The enactment, it is seen, gives no case, and prescribes no principle, to guide the Court in the exercise of their discretion: it remained therefore for the profession to learn from the earliest ex-tentative appli- No merits in the defence, no demerit in cations, if we may use the expression, in the failure of the action; on the contrary, what way the Court would exercise the a defence which was confessedly unjust, power given to them. The earliest case and which succeeded on a ground so techcame before the Court of Common Pleas, nical that the plaintiff could not be expected and the decision of the Court being given to comprehend it, are indeed strong grounds in a formal written judgment, it became a leading case, and a criterion for future applications that case, however, stands

Lysons v. Barrow, 4 Moore & Scott, 463.

Plaintiff Executors' Costs.

b

The misconception introduced by the case of Lysons v. Barrow, has given rise to numerous unsuccessful applications; and we think it will be useful now to bring the cases together for future guidance.

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397

for making the application. Yet this case | in writing, or to give any other information may be considered as having been overruled, than that the deceased had contracted to as far as regards the general grounds of do the work for them for less than was such applications. In Engler v. Twisden, charged, and the defendants succeeded at the Court was pressed with this decission, the trial, by proving that the deceased had and Tindal, C. J. said, "I cannot help agreed that the cart with two horses should thinking that the rule laid down in Lysons be charged for as a cart with one horse, ——— v. Barrow is rather more favourable to ex- which it was proved was a common practice i ecutors than the statute will in strictness in the trade, the Court refused to exempt warrant; I think the sounder rule is, to the plaintiffs from costs; and Tindal, C. J. hold the defendant to be in all cases enti- said, 'If the general rule be that victas tled to his costs, unless it shall appear that victori in expensis condemnandus est, why he has brought the action upon himself by should not an executor plaintiff be liable to practising something like a fraud upon the costs where he fails to establish his right to plaintiff." sue, in the same manner as if the contract had been made by himself personally? Why should the burden be thrown upon an innocent defendant? One class of cases in which the Court might properly interpose to relieve executors from costs is, where In the case just mentioned (Engler v. they have acted fairly and honestly in the Twisden) the action was brought on a bond assertion of a supposed right, and have been more than twenty years old, and no pay-deceived by some misrepresentation of the ment of interest was indorsed on it. The defence, however, was not this, but that the defendant was discharged under the Insolvent Debtors' Act: in fact he was so; and the ground on which the plaintiff sought to be relieved was, that the defendant's schedule was not to be found in the office of the Court; but in answer to this, it appeared that the plaintiff might, by making due search and inquiry, have discovered from the register book and minute book of the clerk in court that the defendant had obtained his discharge, and on this ground the Court refused to relieve him.

It must be confessed that the ground of the application in this case was very feeble; but there are many cases in which an executor has not the means of forming an opinion on the truth of a plea, unless the defendant communicates to him some of the particulars of the evidence: to refuse to make such communication is, obviously no fraud; and therefore, consistently with the rule which we have quoted in the words of Chief Justice Tindal, a refusal of that kind is no ground for granting an executor the exemption in question.

Accordingly, where the action was brought for 9171. 18s. 10d. for the use of a waggon and three horses, and a cart and two horses, and the defendants had tendered 5357., and refused to explain upon what grounds they sought to reduce the claim to this amount, or to say whether there was any agreement

b2 Scott, 427.

other party. If such had been the case here, I should not have hesitated to say, that our discretion ought to be exercised in their favour. ***** The question is, whether there has been any thing in the conduct of the defendants that will justify us in depriving them of the benefit the legislature intended to give them. It is said that they carefully concealed from the plaintiffs the nature of their defence. I should be sorry to say that a defendant who has a defence capable of being made a matter of litigation is bound before he goes into Court to disclose it to his adversary on request: I know of no law to compel him to do so."

From cases so favourable in their circumstances for the application, and in which nevertheless the application was unsuccessful, it is manifest how rarely it will happen that an executor can claim the exemption; and as a pretty general rule is laid down in the passage just quoted from Chief Justice Tindal, we shall content ourselves with little more than briefly stating the other cases, in not one of which did the application succeed, though we should add that Mr. Justice Vaughan, in the last case, differed from the rest of the Court, and thought the plaintiff had made out a case for an exemption.

In one of the other cases, the action was on a bond for an apprentice fee, and the defence was that the testator had made a

c Southgate v. Crowley, 1 Scott, 374.