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[graphic][subsumed]

No. 473—Vol. X.

JANUARY 31, 1846... Price 1s., with Supplement, 28.

**The following are the Names of the Gentlemen who favour THE JURIST with Reports of Cases argued and

decided in the several Courts of Law and Equity :

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LONDON, JANUARY 31, 1846.

cative of the intention, a covenant may be joint or joint

and several to or with the covenantors or covenantees, notWe think we may venture to say, without disrespect withstanding the interests are several,—so they may be to those members of the Profession who do not practise several, although the interests are joint. But the imin the common law courts, that difficulties not un- plication or construction of law when the words are commonly arise in seeking legal remedies upon deeds or ambiguous, or are left to the interpretation of law, will other instruments, from the framers of them not having be, that the words have an import corresponding to the been conversant with the doctrines of those courts. It interest, so as to be joint when the interest is joint, and is one of the evils necessarily attendant upon the divi- several when the interest is several; notwithstanding sion of labour which everywhere prevails, but it be- language, which, under different circumstances, would comes these pages, devoted as they are to the Profession give to the covenant a different effect. generally, to endeavour to counteract this tendency, and In Sorsbie v. Park, (12 Mee. & W. 146; 13 Law Fe, therefore, in our present Number, present to the Journ., N. S., Exch., 9), this qualification of Mr. Presnotice of our readers, especially of those of the class to ton of the rule above noticed was brought before the which we have alluded, the following decisions of courts Court of Exchequer, and adopted by that court. “I of common law respecting the construction of co- think the rule," said one of the judges, “is plain and venants:

certain, and requires no authority ;' it is correctly In Eccleston v. Clipshaw, (1 W. Saund. 153), it was stated by Mr. Preston, in the passage in Sheppard's beld, that, though a covenant be joint and several in the Touchstone which Mr. Temple has cited. Where the terms of it, yet, if the interest and cause of action be words of a covenant are in their nature ambiguous, so joint, the action must be brought by all the covenan- that they may be construed either way, then the deed tees. And, on the other hand, if the interest and in which they are inserted supplies the mode of their cause of action be several, the action may be brought construction. If it exhibit a several interest in the parby one only. This rule has been followed in a va- ties, you may construe it as a several covenant, and vice riety of cases, which may all be found referred to versâ. But there is no rule to say, that words, which in the notes to the above case; and the general rule are expressly a joint covenant by several persons, shall established by them is, that, wherever the interest be construed as a several covenant, unless there is someof the covenantees is joint, although the covenant thing to lead to that construction.” And another, “I be in terms joint and several, the action follow's think the correct rule is laid down by Gibbs, C. J., in the nature of the interest, and must be brought in the the case of James v. Emery, with the qualification stated names of all the covenantees; but, where the interest of by Mr. Preston, in the note in Sheppard's Touchstone, the covenantees is several, they may maintain separate 166. That rule is, that a covenant will be construed to actions, though the language of the covenant be joint, be joint or several according to the interest of the parIn a note to Shep. Touch. 166, Mr. Preston, observing ties appearing upon the face of the deed, if the words upon this rule, and upon the language of Sir Vicary are capable of that construction; not that it will be Gibbs in James v. Emery, (5 Price, 533), lays down as construed to be several by reason of several i presta if the correct rule, that, by express words, clearly indi- 'it be expressly joint.”

Vol. X.

In Mills v. Ladbrooke, (7 M. & G. 218; 7 Scott, troduces an exception, not grounded on judicial author1005; 8 Jur. 247; 13 Law Journ., N. Ş., C.P., 122), ity, namely, that the covenants must be ambiguous, beMr. Preston's qualification of the rule was adverted to fore that which is primâ facie either joint or several by the court, but without assent or dissent, as the case can be properly construed as several or joint, according was capable of decision, assuming the rule to be unqua- to the interest of a covenantee. He cites Salkeld, lified. In more recent cases, however, the correctness p. 393, which gives no countenance to the exception; has been directly brought in issue, and the result, as and he cites 2 Rolle's Abridgment, p. 419, which rewe apprehend, has been to establish the unqualified lates to a wholly different matter. We have looked rule.

into not only the second, but the first, Rolle's Abridge But a short time before the decision of Sorsbie v. ment, p. 419, which is under the title 'Condition,' and Park, the Court of Queen's Bench had, in its judgment also at p. 519, which comprises the head of Covenant;' in Foley v. Addenbrooke (4 Q. B. Rep. 197; 3 G. & D. but in neither place does this doctrine at all appear. 64; 7 Jur. 234; 13 Law Journ., N. S., Q. B., 163), re- Mr. Preston thus concludes his observations: “The gecognised the result of the cases as being as before stated, neral rule proposed by Sir Vicary Gibbs, and to be without noticing the qualification of Mr. Preston, but found in several books, would establish that there was a to which, indeed, their attention had not been called. rule of law too powerful to be controlled by an intenThe case, therefore, is not entitled to be considered as tion, however express. But we think that there is no of much importance.

ground for Mr. Preston's apprehension, that words perBut Hopkinson v. Lee (14 Law Journ., N. S., Q. B., fectly plain and unambiguous, confining the contract 101; 9 Jur. 616) is of a different character, coming expressly to one person, and excluding all others from after the decision of the Court of Exchequer, and its operation, will be strained by the law so as to comexpressly passing judgment upon it. In that case the prehend those whom it took pains to exclude. The words of the covenant were, " That the defendant and true explanation of the rule is rather this: that the T. M. Lee, in consideration of the premises and of the whole covenant, taken together, extends to both coveadvance of the sum of 29001., covenanted with the nantees, and not to either of them, although separately plaintiff, his executors, administrators, and assigns, and named in some of its words, by reason of the joint inalso as a separate and distinct covenant with and to the terest of the subject-matter of the action appearing on said A. C. Hogg, his executors, administrators, and as the face of the covenant itself. Such being the state of signs, in manner following; that is to say,” &c. It authorities, a special case was reserved from the assizes was contended for the defendant, that the plaintiff ought for the Court of Exchequer, where certain persons with to have joined A. C. Hogg in the action, she having, as whom a covenant had been made sued the covenantees appeared to be the fact, an interest in the common upon it. The deed, being fully set out, was found to fund. Sorsbie v. Park was cited and relied upon for make the defendants covenant with the plaintiffs for the plaintiff; and the correctness of the qualification themselves and others; and, in Easter Term, 1813, the introduced by Mr. Preston, and recognised by the court held, in strict conformity with all the cases, that judges in that case, was denied by the Court of Queen's a nonsuit ought to be entered, because all the others Bench, who directed a nonsuit to be entered. We had not been joined as plaintiffs in bringing the action, quote that part of the judgment which is more parti- | although the covenant declared on was made with the cularly applicable to the point in question:

plaintiffs alone. But the plaintiff here founds his arguLord Denman, C.J.-" The question in this case was, ment upon some dicta which fell from the late Lord whether a nonsuit ought to be entered on account of Chief Baron and from Mr. Baron Parke, applicable not the action being brought by the plaintiff only, when to that case, but only to the converse of it, which was the covenant in contemplation of law was said to be represented as at variance with the old law. Uuluck. made by the defendant with the plaintiff and one Anne ily, no reference was made to Anderson v. Martindale; Caroline Hogg jointly. That'it is so made is argued and the court, justly thinking the case too clear for arupon the authority of a very long series of cases, of gument, stopped the learned counsel who supported it. which Slingsby's case (5 Rep. 18 b, 19 a) is the leading Lord Abinger thought the rule plain and certain, and one, and although by no means the oldest case, yet that it required no authority, observing, however, it more entitled to respect, because founded on principle; is correctly stated by Mr. Preston,' and then he cites the reason of which is adopted, sanctioned, and fully the rule, with the exception. Baron Parke also thinks explained by Lord Kenyon, in Anderson v. Martindale, the correct rule is laid down by Gibbs, C. J., in James (1 East, 497), who comments upon it, and whose sub- v. Emery; still, however, with the qualification stated sequent decision received the silent acquiescence of the by Mr. Preston. These learned judges could not intend whole court. This case does not appear to have been to overrule Anderson v. Martindale, which was not overruled or questioned. It was acted upon in the brought before them; nor, if they did, could we agree court of error, over which Gibbs, C. J., presided, in to be bound, by their extra-judicially declaring such in1818, in James v. Emery, (5 Price, 533; S. C., 8 tention, when their decision itself pursued the decision Taunt. 215). The same rule is laid down in Shep- in that case." pard's Touchstone, p. 166; but the last very learned The Court of Queen's Bench, therefore, dissents from editor of that work (Mr. Preston) has there originated the dicta in Sorsbie v. Park, and adheres to the law a doubt whether it is not expressed too generally. He laid down in the old cases, without the qualification inrefers to several cases, none of which impugn or qualify troduced by Mr. Preston. the rule; and, what is truly remarkable, he does not! The above judgment has been brought before the even name Anderson v. Martindale. Mr. Preston in- I Court of Exchequer in a still later case, Bradburne V.

Batfield, (14 Law J., N. S., Ex., 330); and that court

REPORT OF THE COMMITTEE ON LEGAL

REPORT has explained what was meant by the dicta in Sorsbie

EDUCATION, v. Park, and, in effect, confirmed the doctrine held by

APPOINTED TO INQUIRE, BY THE the Court of Queen's Bench. “I mention this,” says

PARLIAMENT OF THE MIDDLE TEMPLE. Baron Parke, who delivered the judgment, “because the Court of Queen's Bench, in the case of Hopkinson F. , have supposed that Lord Abinger and myself

At a Parliament holden on the 21st November, 1845, had sanctioned some doctrine at variance with the case a motion having been made by Master Bethell, of which d Anderson v. Martindale and Slingsby's case, which the notice was as follows, viz. :was far from my intention to do, it being lawfully esta- That, for promoting the legal education of the stublished, I conceive, by the cases that one and the same dents of this House, it is expedient that a lecturer be covenant cannot be made both joint and several with appointed for the purpose of reading on jurisprudence

| and the civil law; and that two or more exhibitions the covenantors and covenantees. It may be fit to ob

be founded for the benefit of such students as shall, on serve that a part of Mr. Preston's explanation, that, by

examination previous to their call to the Bar, shew the express words, a covenant may be joint and several with greatest proficiency in the subjects of such lectures; the covenantor or covenantees, not withstanding the in- and that such lectures be open to the attendance of stuterests are several, is inaccurately expressed : it is true

dents of the other Inns of Court; and that, from and

| after the first day of Easter Term, 1846, no student of only of covenantors, and the case cited from Salkeld (p.

this House be called to the Bar who shall not have at393) relates to them. Probably Mr. Preston intended

tended one of such terminal course of lectures, and that no more; and I never meant to assent to the doctrine the societies of the other Inns be requested to concur that the same covenant might be made by any words, with this society in the establishment of similar lechowever strong, joint and several, where the interest tureships in other branches of law; and that it be rewas joint.”

ferred to a committee to approve of proper regulations The most important part, therefore, of the qualifica

for carrying the above objects into effect. tion is to be rejected ; and, if Mr. Preston meant to speak

It was resolved and ordered by the Bench,of the covenantees, and it is clear, from his language. “That it is expedient that steps be taken for prothat he did, he was undoubtedly wrong. And, with moting the legal education of the students of this House;

and that it be referred to a committee to ascertain and respect to covenantors, the qualification was needless,

report to the Bench the best mode of carrying this reas the judgment of Sir Vicary Gibbs, and the cases

solution and the objects mentioned in the above notice upon which it was founded, had reference to the parties of motion into effect.” bringing the action, and not to those against whom it | Under the aforesaid order, the committee have made was to be brought.

the following report:

TO THE PARLIAMENT, &c.
MIDDLE TEMPLE.

Your committee having entered on the inquiry directed to them, as to the means to be adopted "for pro

moting the legal education of the students,” recommend The Benchers of the Middle Temple request that gen

that the steps to be taken by the Middle Temple should tlemen desirous of becoming candidates for the office of

be such as are best adapted for the commencement of a Reader on Jurisprudence and the Civil Law will address

sound and comprehensive legal education; for they have the Treasurer of the Middle Temple by letter, to be left

| reason to hope that the plan, thus rightly begun, will at the office of the Under Treasurer, Middle Temple, on

be followed out and completed by the proceedings of

the other societies; so that the institutions which will be or before the 20th February next ensuing. Candidates

finally established by the several Inns shall afford to are requested to state the grounds and references on which their applications are rested.

the students collectively a complete course of legal inThe Benchers of the Middle Temple will proceed to

struction. The committee have also adverted to the make their election on or before the 1st March next.

' acknowledged deficiency which has long been felt to

exist in the education of English lawyers, in conse29th January, 1846.

quence of their entire neglect of the study of jurisprudence and the civil law; although, in all places where law has been or is taught as a science, these subjects have

uniformly formed the first and one of the most essential The Queen has been pleased to direct letters-patent

parts of legal education. From these, and many other to be passed under the Great Seal of the United King

reasons to the like effect, the committee are induced to dom, granting the office and place of Advocate-General |

recommend that the first step for the promotion of legal or Jadge Martial of her Majesty's forces to the Honour

education to be taken by this House should be the apable James Stuart Wortley.

pointinent of a reader on jurisprudence and the civil The Right Hon. Sir Nicolas Conyngham Tindal, law. To illustrate the benefits which, in the view of Knt., Lord Chief Justice of the Court of Cominon the committee, would result to the legal education of Pleas, has appointed the under-mentioned gentlemen the students from such an appointment, it may be well to be Perpetual Commissioners for taking the acknow- to explain the sense in which the committee use the ledgments of deeds to be executed by married women in terms “ civil law” and “ jurisprudence," and their and for the respective counties and districts attached to consequent expectation of the province and duties of their names:-John Price, of Buntingford, in the coun- the lecturer. ty of Hertford, in and for the county of Hertford ; By the term “jurisprudence" the cominittee mean Tbomas Llewellyn, of Tunstall, in the county of Staf- to indicate general jurisprudence, as distinguished from ford, in and for the county of Stafford; John Joseph the particular jurisprudence of any individual nation; Wise, of Ashbourne, in the county of Derby, in and for and which, in further explanation of their meaning, the county of Derby.

Itbey would divide into positive jurisprudence, or the

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philosophy of positive law, and comparative jurispru- the term for which the lecturer should be appointed. dence, or the exhibition of the principles of positive law the committee desire that there should be a successiou in an embodied form, by a comparison of the jurispru- of able lecturers on such extensive subjects; but they dence of modern nations. In the first, they would have are at the same time aware that the tenure of office the lecturer also include the important subject of the should be sufficiently long to afford an adequate com“ Interpretation of Laws;" and, under the latter head pensation for the labour of composing a well digested of comparative jurisprudence, the “Conflict of Laws” course; and they, therefore, think that the lecturer may, with propriety, be comprised.

should be appointed for three years, to be computed By the term “civil law” the committee wish to in

from the end of six months from the date of such apdicate what may be called “Modern Roman Law," that pointment, which preliminary period of six months is is to say, those portions of the civil law which, being of

of to be allowed for the composition of the lectures, and, an universal character, and applicable to the relations of in respect thereof, the extra sum of one hundred guineas modern society, have formed the basis of the jurispru- should be given if the lecturer shall have discharged dence of many continental nations, and entered so largely

the duties of his office during the whole period for which into our own.

| he is to be appointed. The committee are of opinion that this study of the

Thus the lecturer will receive 1000 guineas from the theory of the civil law may be most advantageously

society, which, with the annual sums paid by the stucombined with the study of jurisprudence, and that the

dents, the benefit of publication, and, as the committee two united will furnish the best means of preparatory

trust, the generous feeling of deserving well of the Prolegal culture, and the formation of an enlarged and

fession, will form a sufficient inducement to men of the comprehensive legal mind.

highest attainments to seek the office, and to be zealous In lecturing on this subject, the committee recom

in the performance of its duties. mend that the lecturer should read with the class, first,

With respect to the qualification of the lecturer, the the greater part of the Institutes, and then portions of Co

committee recommend that he should be either a barthe Pandects, accompanying that which is read with an

rister or doctor of civil law. The mode of the appointexposition of the subject, tracing the rules and princi

ment of the lecturer is a matter of some delicacy; and ples in the jurisprudence of modern nations, and more

the committee suggest that the bench, having received especially in that of our own country.

the names and testimonials of the candidates, should

adopt some mode of nomination which may prevent all The committee believe that this plan, if properly carried out, will be of the greatest advantage to students in

canvassing and personal solicitation. the commencement of their studies; and that the tran

The committee propose that the lectures shall be sition, which they desire should be constantly made, opened to the students of all the societies. from the principles of the civil law to corresponding The committee next request the attention of the portions of English law, and the cases and judgments Bench to the second part of the system of education in the latter, which are most illustrative either of the they recoinmend to be adopted, and which consists in agreement or differences of the two systems, will effec- the institution of an annual examination of students tually tend to ground the students in a right apprehen proposed for the Bar, previous to their being called. The sion of the principles of many of the most important committee do not propose that such examinations shall portions of English law, as now practically admini-| be made compulsory, but they think it highly desirable stered. It is scarcely necessary to observe, that, to stu- that an opportunity of distinguishing themselves should dents intended for the equity bar, (and which now form | be afforded to all young men desirous of becoming ada large proportion), this is the only fitting course of vantageously known to the Profession in a legitimate preparatory study.

manner; and they, therefore, propose, that, on the ocThe committee recommend that the lecturer should

casion of every call to the Bar, the names of those studeliver three terminal courses, each consisting of twenty

dents who have submitted themselves to examination lectures, the first course between the first day of Hilary

shall be published by the society, with such honourable Term and the end of March; the second between the

addition as they shall appear to have deserved ; and the first day of Easter Term and the 10th July; and the

committee hope and believe that the attention of the third between the 26th October and the 24th December

Profession will be attracted to these lists, and that many in every year. This division will give about two lec

young men will be found desirous of availing them. tures to every week, of which they recommend that one

selves of this unexceptionable mode of becoming known should be on jurisprudence and one on the civil law,

and distinguished. The committee propose that the ex

samination shall be conducted by three benchers, asmaking it the text for the exposition of English law."

sisted by the lecturer; and that it shall consist of quesThe committee are aware, that, to render these lec- tions in jurisprudence, common law, equity, and con tures attractive, superior qualifications will be required ) veyancing, to each of which questions a numerica in the lecturer, and that his remuneration from the so- | value shall be attached by the examining benchers. ciety should be ample; they think, however, that, as an incentive to the lecturer, part of the emolument

The committee suggest that the lectures should comshould be dependant on the number of students; and

mence in October, 1846, unless an able lecturer can be they propose, therefore, that the annual sum of 300

found who is prepared to enter in Easter Term next on guineas should be received by the lecturer from the so

the duties of his office; and they also propose that the ciety, and that he should also receive from every student

first examination shall be held in Trinity Term, 1847. one guinea for each terminal course of lectures.

The third recommendation of the committee is necesThe committee think, that, having regard to the obli

sary, for the completeness of the institutions they desire gation which, by the rules of the House, is now thrown

to see established. on the students, of attending “readings,” (which are

As an additional inducement to attendance at the leca merely nominal), and the fines imposed for non-attend tures, and to exertion at the examination, the commita ance, each student might well be required to attend at

tee propose that two exhibitions of prizes of 100 guineas least one of the terminal courses previously to being

each should be given by the society to the two students called to the Bar; but at present the committee recom

who, having diligently attended at least three term mend that no direction be given for enforcing attendance courses of lectures, shall have passed the most aces until some general system shall have been adopted in torious examination. connexion with the other societies. With respect to ! The committee believe that these exhibitions will

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