This day is published, in one thick Volume, royal 8vo., price 17. 188. boards, THE ELEVENTH EDITION of SIR E. B. SUGDEN'S PRACTICAL TREATISE on the LAW of VENDORS and PURCHASERS of ESTATES. ** By adopting a smaller type and adding to the fullness of the pages, this Edition has been very considerably reduced in bulk and price. The intrinsic value of the work has not in any way been affected by the alteration in appearance, as the text remains unabridged, while the facility of reference is increased by the consolidation of the former three indexes. S. Sweet, 1, Chancery-lane, London. Of whom may be had, recently published, SIR EDWARD SUGDEN'S TREATISE ON POWERS. A PRACTICAL TREATISE on POWERS. By the Right Hon. Sir EDWARD SUGDEN. The Seventh Edition. In 1 vol. 12mo., price 148. boards, ALL the EFFECTIVE ORDERS in the HIGH COURT of CHANCERY from 1815 to the present time, with the Decisions thereon, and the Statutes which regulate the Practice of the Court. 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"In many important respects, a decided improvement upon its predecessors; and when the names of some of these are remembered, we think, that, in expressing this opinion, we are passing no slight praise upon Mr. Williams's book."-Law Magazine. "Of considerable use and merit. It appears to us written in a pleasing and agreeable style, and well calculated to make a favourable impression on the Student."-Law Review. Price 1s. 6d. sewed, REMARKS on the ACTS of the SESSION 8 & 9 VICTORIÆ relating to REAL PROPERTY; with an Answer to the Question "Whether Attendant Terms ought still to be assigned to Trustees for Purchasers," intended as a SUPPLEMENT to "Principles of the Law of Real Property." By JOSHUA WILLIAMS, Esq., of Lincoln's Inn, Barrister at Law. 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DANIELL'S CHANCERY PRACTICE.-SECOND EDITION. THE PRACTICE of the HIGH COURT of CHANCERY. By EDMUND ROBERT DANIELL, F.R.S. Second Edition, with several New Chapters, and considerable Alterations and Additions; adapting the Text to the last General Orders of May, 1845, and the Decisions of the Court up to the time of publication. By T. E. HEADLAM, Esq., of the Inner Temple, Barrister at Law. MILLER'S ORDERS IN CHANCERY.-SECOND EDITION, In 12mo., price 14s. boards, LARY TERM, 1800, to MICHAELMAS TERM, 1845, with an Ana THE ORDERS of the HIGH COURT of CHANCERY, from HI lysis of the Orders; the Statutes relating to Pleading and Practice in that Court, including Sugden's Acts, with Notes of the Decisions upon the above Orders and Statutes, and Explanatory Observations. Second Edition. By SAMUEL MILLER, Esq., Barrister at Law. SMITH'S MANUAL OF EQUITY JURISPRUDENCE. A MANUAL of EQUITY JURISPRUDENCE, as administered in England, founded on the Commentaries of Joseph Story, LL.D., one of the Justices of the Supreme Court of the United States, and comprising, in a small compass, à numerous collection of POINTS constantly occurring in CHANCERY and CONVEYANCING, and in the general practice of a Solicitor. By JOSIAH W. SMITH, B.C.L., of Lincoln's Inn, Barrister at Law. "A manual especially adapted to the exigences of a solicitor's practice."-Jurist, No. 465. STARKIE'S LAW OF EVIDENCE.-THIRD EDITION. In 3 Vols. royal 8vo., price 47. 148. 6d. boards, A PRACTICAL TREATISE of the LAW of EVIDENCE, and DIGEST of PROOFS in CIVIL and CRIMINAL PROCEEDINGS. Third Edition, with very considerable Alterations and Additions. By THOMAS STARKIE, Esq.,,of the Inner Temple, one of her Majesty's Counsel. SELWYN'S NISI PRIUS.-ELEVENTH EDITION.. A ABRIDGMENT of the LAW of NISI PRIUS. 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This Edition comprises References to all the Cases and Statutes down to Trinity Term, 1846, inclusive, and also contains an Appendix shewing the Principles applicable in determining the Liabilities of Railway Subscribers. The Work in its present form is designed as a Manual for the use of the Special Pleader and the Attorney. Also, recently published, by the same Author, A SELECTION of LÉGAL MAXIMS, Classified and Illustrated. 8vo., price 15s. boards. A A. Maxwell & Son, Law Publishers, 32, Bell-yard, Lincoln's-inn. DR. BATEMAN'S AUCTION LAWS. PRACTICAL TREATISE on the LAW of AUCTIONS. By JOSEPH BATEMAN, LL.D. The Third Edition, adapted to the recent Alterations in the Law, and containing a complete Series of Conditions of Sale; with various new Tables for valuing and appraising Estates and Property, and much additional Information for the Use of Auctioneers, Appraisers, Factors, and Brokers, as well as Solicitors entrusted with the Management of Auction Sales, &c. 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THE PRACTICE of CONVEYANCING, with PRECEDENTS and FORMS of ASSURANCE, and PRACTICAL NOTES, as originated by the late THOMAS MARTIN, Esq., of Lincoln's Inn, Barrister at Law; and continued and completed by CHARLES DAVIDSON, Esq., of the Middle Temple, Barrister at Law, and late Fellow of Christ's College Cambridge. Fleet-street, (Corner of Chancery-lane), on FRIDAY next, Dec. 11th, at half-past 12, THE VALUABLE LAW LIBRARY of the late HENRY TAYLOR, Esq., Barrister at Law, Recorder of Pontefract, (by DEEDS for EXECUTION ABROAD.-Messrs. J. & R. M'CRACKEN, Foreign Agents, 7, Old Jewry, beg to inform the Legal Profession that they undertake to forward Deeds for Execution by Parties Abroad, through their Correspondents on the Continent, for the Costs of Transmission and a simple Commission. List of Correspondents, and for further information, apply as above. Messrs. J. & R. 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BRUSH, and SMYRNA SPONGES.-The Tooth-brush has the important advantages of searching thoroughly into the divisions of the Teeth, and cleaning them in the most effectual and extraordinary manner, and is famous for the hairs not coming loose, 18. An improved Clothes' Brush, that cleans in a third part of the usual time, and incapable of injuring the finest nap. Penetrating Hair Brushes, with the durable unbleached Russian bristles, which do not soften like commen hair. Flesh Brushes of improved graduated and powerful friction. Velvet Brushes, which act in the most surprising and successful manner. The genuine SMYRNA SPONGE, with its preserved valuable proper ties of absorption, vitality, and durability, by means of direct importa tions, dispensing with all intermediate parties' profits and destructive bleaching, and securing the luxury of a genuine Smyrna Sponge. ONLY at METCALFE & CO.'s, 130 B, Oxford-street, one door from Holles street. Caution.-Beware of the words "from Metcalfe & Co.'s," adopted by some houses. Orders for THE JURIST given to any Newsman, or letter (postpaid) sent to the Office, No. 3, CHANCERY-LANE, or to V. and R Portugal Street), 26 and 39, BELL-YARD, will insure its punctual deSTEVENS & G. S. NORTON, (Successors to J. & W. T. Clarke, late of livery in London, or its being forwarded on the evening of publication, In 1 thick vol. 8vo., price 17. 8s. boards, the Second Edition, greatly "This work contains a fund of counsel, valuable no less to the Practitioner than the Student, enriched with learning from manifold sources of knowledge, fraught with great practical wisdom, and written in language of no ordinary power. We heartily recommend it to the attentive perusal of all Law Students."-Law Magazine. A. Maxwell & Son, Law Publishers, 32, Bell-yard, Lincoln's Inn. Printed by WALTER M'DOWALL, PRINTER, residing at No. 4, Pemberton Row, Gough Square, in the Parish of St. Bride, in the City of London, at his Printing Office, situate No. 5, Pemberton Row afore said; and Published at No. 3, CHANCERY LANE, in the Parish of St. Dunstan in the West, in the City of London, by HENRY SWEET, LAT BOOKSELLER and PUBLISHER, residing at No. 11, John Street, Bedford Row, in the County of Middlesex. Saturday, December 5, 1846. No. 518-VOL. X. DECEMBER 12, 1846. PRICE 18. 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:— A. GORDON, Esq. of the Inner Vice-Chancellor Wigram's [ F._FISHER, Esq. of Lincoln's {^ Temple, Barrister at Law. LONDON, DECEMBER 12, 1846. SOME recent discussions and events have called public attention in a forcible manner to a great defect in the jurisprudence of this country. We allude to the absence of any effective power in the Crown to do justice in certain circumstances, where injustice has been done in its name to the subject. Take, for instance, the case of a person accused of crime. Such a person is accused and tried at the suit of the Crown, representing the State. The crime, if he has committed one, is against the public; at any rate, the public, through its organ and representative the Crown, is the prosecutor; and the punishment is almost invariably dictated by a notion of atonement to the State, rather than of compensation to the particular individual who may have been the subject of the crime. The whole principle, in fact, of our criminal law is, that crime is an offence against the State, in which the offence against the individual is merged and lost. Accordingly, the Crown is armed with abundant powers for detecting and punishing crime, but it possesses no sufficient powers for doing justice to a subject against whom its corrective powers may have been erroneously carried into effect. If, for instance, a person has been accused of crime, prosecuted at the suit of the Crown, tried and convicted, and sentenced to the punishment awarded by the law, and such sentence has been carried into effect, and it turns out afterwards, as it does sometimes occur, that the whole affair-prosecution, conviction, and sentence-is founded in error, not of law but of fact, and that the convicted person never did commit the crime for which he is sentenced to punishment; what is his position? What are his rights, and what are the powers of the Crown with regard to him? His position is that of a total dependant upon the power vested in the Crown of shewing mercy. His rights, we mean his moral rights, are pretty clear. As he never VOL. X. V V Court Inn, Barrister at Law. was guilty, as he never ought to have been convicted, and was only convicted through the error of the State, his right is to be remitted back to the condition in which he was before the whole transaction. To give him a pardon, is, in fact, an insult and an absurdity. They are pardoned who have done wrong; and if a sentence is passed upon one who has done no wrong, he ought not to be pardoned, but the sentence ought to be reversed, wholly swept away, as if it had never existed. But this is not all: if, in addition to the injury done by the mere fact of the erroneous judgment, he has received also through it consequential injury, he is of right entitled to compensation for such injury. As between man and man, no one ever dreams of contesting the soundness of this doctrine, and the law recognises and acts upon it. If, for instance, through an erroneous estimate of my own rights I injure another, the law exacts from me, not only that I shall undo whatever I may have done against him, but that I shall make to him compensation for any consequential injury that he may have sustained. If this be a just rule, and no one denies its justice as between subjects or members of the same state, why should a different one prevail between a member of the State and the State itself? And what good purpose can be answered by the assertion of an impossible infallibility on behalf of the State and its representative the Crown? Such, however, is the state of things as between the subject and the Crown. The Crown has no power to atone for the error of those bodies to whom the execution of the laws is entrusted, if in their execution of them they improperly convict and sentence to imprisonment a subject, except by treating him as it would an actual criminal found deserving of mercy, viz. by pardoning him; and beyond that, in the way of compensation for consequential injury, it is not possessed of any powers whatever. It has no public funds at its disposal for repaying to him even actual expenses improperly forced upon him, still less for making to him any compensation in the nature of damages. Now this, we apprehend, is a grievous defect in the powers vested in the Crown, and one which could be easily remedied. Nor do we apprehend any great indisposition would be found in the public to place at the disposal of the Crown the means of affording compensation, where, in the exercise of its powers for the benefit of the State, it has, through its officers, committed injustice, if the public were once thoroughly imbued with the idea, that in such matters-that is, in the administration of the law-the Crown is at this day purely the representative of the State, and not in the slightest degree personally concerned. When the Crown prosecutes, it is the public that prosecutes for its own protection. If the public has caught and punished the wrong person, it has no more. right to shield itself from making compensation, under the vague piece of mystification of the Crown's irresponsibility, than an individual would have if he had injured a fellow-subject; and the public, we are satisfied, would be heartily ashamed of so sheltering itself, if it once saw clearly, as is the fact, that the Crown and itself are, in the matter of enforcing the laws, one and the same thing. The Crown, then, should be invested with the power of reversing and wholly obliterating, at its own expense, (that is, at the public expense), a sentence proved to have been founded in error, and should not be driven to the subterfuge of saving by its mercy a subject, who, not having sinned, cannot properly be an object of mercy. And it should also have placed at its disposal sufficient means for awarding to a person unjustly subjected to loss, and suffering through the error of its officers, compensation, in the nature of damages at the hands of the public. A part of the system to which the above remarks apply is, the rule of practice, that, in litigation between the Crown and subjects, the Crown pays no costs,-a rule which is, at this day, as absurd as it is harsh. It is founded, like the incapacity to make compensation, partly on the legal fiction that the Crown can do no wrong, and partly on what was, in the olden time, a reality, viz. that while the Crown was, as representing the State, obliged continually to act as a litigant on behalf of the State, its revenues did not flow directly from the people, but were the property of the Crown itself; and were, in fact, scarcely ever sufficient for the maintenance of the authority, and the execution of the various duties, that the political constitution of the times cast upon the Sovereign. But those times and those political arrangements having long passed away, with them should pass away usages which might then be necessary, but are now no longer so. Where, for instance, at this day, the Crown, for the sake of the public revenue, proceeds at law or in equity for the determination of the liability of an individual to pay legacy-duty, the rule that the Crown pays no costs, is productive of great injustice, operating, in many instances, to compel submission merely because the certainty of losing some given amount of property, is better than the uncertainty of the loss that may be inflicted in the shape of costs that cannot be obtained from the plaintiff, even if the defendant is successful. If we recollect, that in all these cases the Crown is, in truth, but a name, and the litigant is really the public,—that public whose unbounded wealth is the wonder of all nations,-and that it is in all such cases a litigant for its own protection and its own advantage, shall we not say, that it is monstrous that this suitor of endless millions, should avail itself of an obsolete fiction, to drive its individual members into submission, by placing itself beyond the pale of that liability to pay costs, if suing unjustly, which is found so powerful a check upon the cupidity of individual suitors? OBSERVATIONS ON GIFTS IN WILLS, WITH WORDS IMPORTING THE PRESENT TENSE; AND ON THE DOCTRINE OF KEEPING MORTGAGE DEBTS ON FOOT, WITH REFERENCE TO COCKRAN v. COCKRAN, (14 Sim. 248), AND MEDLEY v. HORTON, (Id. 226). Two cases are reported in the number recently published of Mr. Simons' Reports, which afford much scope for reflection upon the doctrine to be collected from the authorities bearing upon their subjects respectively. The cases to which we allude are, Medley v. Horton, (14 Sim. 226), on the question of priorities as between incumbrancers; and Cockran v. Cockran, (Id. 248), on the effect in a will, of words of gift, savouring of the present tense. We shall take the second case first. In Cockran v. Cockran, the words of a will of personalty were these: "I will that my wife shall receive the interest of all the property that I possess in the public funds, for her own use during her natural life." The testator at the date of his will had no property in the funds, except some Long Annuities, which remained in his name at his death; and the question was, whether the legatee was entitled to the income of other property that the testator had in the funds at his death. The judgment is, according to the report, of extreme brevity. It runs thus:-Vice-Chancellor." It seems to me that the words 'all I possess' mean, ‘all I now possess ; that is, at the date of the will."Declare aecordingly. The authorities on this point are collected in Mr. Jarman's Treatise on Wills, Chap. 10. That learned writer commences by stating two propositions: firstly, that, in regard to wills made before 1838*, of things, his language is referential to the date of the wherever a testator refers to an actually existing state will, and not to his death, as this is then a prospective event; secondly, that verbs in the present tense have a similar effect in restricting a devise or bequest to the subjects or objects existing at the date of the will. But the learned writer goes on to say, that, in some of the cases, considerable reluctance appears to have been manifested to carry out this principle. The cases cited by Mr. Jarman in reference to the second point are, Wilde v. Holtzmeyer, (5 Ves. 816); Bridgman v. Dove, (2 Atk. 201); Ringrose v. Bramham, (2) Cox, 384), all of which support the contrary of the second general doctrine laid down by him; nor does examine these cases and some others, and to endeavour he cite a single one which supports it. We propose to to point out the distinction that must be referred to in order to find when the rule is that the will speaks from will was made before 1838. If it was not, the express enact. * We take it for granted, that, in Cockran v. Cockran, the ment of the 24th section of the Wills Act, would throw great difficulty in the way of supporting the decision. its own date, and when from the date of the testator's death. subjects coming into existence after the date of the will. The words "all my debts that I owe, or that I have conIn Wilde v. Holtzmeyer, the will was penned by a fo- tracted," are as applicable to the state of things existing reigner, and was very informal. There was first a at the testator's death, as to that existing at the date bequest of a particular sum of stock, in these words:- of his will. So, if I give to all the children that A. hath, "And as for such worldly estate and effects which I the words may, without any strain upon their meanshall be possessed of, or entitled unto, at the time of my ing, include children at the death as well as at the date decease, I give unto my son, Henrich Herman Holtz- of the will. The rule does not, therefore, seem to demeyer, and Robert Charnley, their executors and ad-pend upon whether the words used in themselves deministrators, the sum of 21007. Consols, 31. per Cent. signate the present, (for in all the three cases above Bank Annuities, upon trust." Numerous trusts were mentioned the words did particularly designate the then declared; and after providing for various events present), but upon this question, to what present they relative to his son and daughters, came these words: are capable of being referred; whether they are neces"And in case my three daughters and son shall all sarily confined to the present existing at the time when happen to die without issue, child or children, of his, they are written, or whether they are capable of inher, or their body or bodies, him, her, or them respect- cluding subjects or objects afterwards coming into exively surviving, then, from and after the decease of the istence. survivor of them, upon trust for, and I do hereby give and bequeath all the said trust funds, and all I am possessed of, unto and amongst all child of my brothers, deceased and living, and sister, and her children in Germany, all equally alike, as shall be then living, share and share alike. Also, I give and bequeath" &c. Then followed a specific bequest to his daughters, a specific bequest to his son, and other bequests. And at last came a general residuary bequest in these words:-" And in consideration, after my decease, when all my debts and funeral and testamentary expenses are paid and discharged, I give and bequeath all the rest and residue, both real and personal, viz. bonds," &c. There was also a codicil. The question arose upon the words "all I am possessed of,"-whether they referred only to the 21007., or to the general residue, subject to the specific bequests; and it was held, that, having regard to the various gifts in the will, particularly to the gift of the residue, distinct from the gift of all he was possessed of, and having regard also to the codicil, and the general rule, that a sense must be put upon all the words of a will if possible, the words "all I am possessed of" meant all he possessed of the particular fund before referred to. The judgment was professedly based on the peculiar language and the whole context of the will; and the court, upon the general question of construction, used these words: "I have no difficulty in saying, the legal construction of the words, standing by themselves, is not exactly what they purport in language--all at the time of making the will; but, if not explained, they must have the effect of passing all the interest in personal estate which the testator might have at his death. And I admit, that if those words closed the will, they would have passed all the trust fund, and everything the testator might have at his death. That is the legal construction, whatever may be the literal one." In Bridgman v. Dove, (3 Atk. 201), the question arose upon the words as to certain estates: "I make liable to all debts I have contracted since 1735." The court said, "In all clauses in respect to provisions for payment of debts, they relate to the time of the death of the testator, in order to make a more honest and faithful provision for payment of debts. If it had been all the debts that I owe, still it would be extended to the time of his death. The words here are," which I have contracted;" have contracted must be construed "shall contract." In Ringrose v. Bramham, the gift was to Joseph Ringrose's children, 501., to every child that he hath by his wife Elizabeth;" and the Master of the Rolls said, "I think I may fairly construe the word hath,' so as to make it speak at the time the will takes effect, and let in children born between the making of the will and the death of the testator." In the foregoing cases, it will be observed that the language was not such as to point at all at a specific bequest. There was nothing in either of them, in the words of the gift, inconsistent with including in it objects or The cases in which it has been held, that words designating the present, confine the gift to objects or subjects existing at the date of the will, will all, we think, he found to fall under one of the following two classes. They are either cases in which the testamentary instrument itself necessarily speaks at the date of its execution, and not at the date of the testator's death, and in which, therefore, though there might be a prospective gift if apt words were used, there cannot be such a gift if words importing reference to the present are used, because there can be, with reference to the instrument, but one present, viz. the time of its execution:-or else they are cases in which the subject or object is so specifically designated, that the will cannot include an object coming under the same description at the date of the death, without necessarily excluding the one to which that description applied at the date of the will; a construction which would be absurd, because, though a man may intend to include the future under a description also applicable to the present, he cannot be supposed to use words designating the present, for the purpose of describing exclusively the future. Of the first class are the cases upon devises of real estate before the Wills Act of 1838, such as Crossley v. Clare, (Amb. 397), cited by Mr. Jarman, (vol. 1, p. 278). Crossley v. Clare was a devise of lands to persons described as the descendants of A. "now living in and about Seven Oaks, or hereafter living anywhere else." And Sir Thomas Clarke, M. R., held, that descendants born after the date of the will, were excluded by the words "now living." Here the will, being of lands, could only speak at the date of its execution. If it had spoken of descendants generally, it might have included them, though coming into existence after its date, because it might, as well as a common conveyance, have carried estates to persons unborn. But when it used the word "now," that word could have no reference but to the time when the will spoke, and therefore could not possibly be referred to the testator's death. Of the second class are such cases as Abney v. Miller, (2 Atk. 593), where a testator gave all his college leases which he then held; and, after making his will, surrendered those leases, and took others; and it was held that this was a revocation of the bequest. The court said, "Where a testator expresses himself in the present tense, it must relate to what is in being at the time of making the will, and can mean only the first lease and the term to come in it." Now here, if at the date of the testator's death he had continued to hold the same lease that he held at the date of his will, of course there could have been no dispute. But although the will, being of personalty, was capable of speaking at his death, yet, the subject-matter falling at his death within the description of the leases that he then held, being distinct from and of necessity displacing the subject-matter that fell within that description at the date of the will, it was impossible to hold the will to apply to the leases of which he was actually |