페이지 이미지

what scrupulous anxiety, the legislature has provided for the registration of ships, in order to prove their built, and to secure the revenue and navigation laws from evasion, one may surely pronounce that the right, to men's lands, is at least of as great importance, and require as regular checks for its security I.

I am your's &c.

T.F. York, Jan. 19, 1803.

VIII. Whether a good Title can be made to a Purchaser of a

Freehold Estate, by a Feme-Covert who is married to an

[ocr errors]

I BEG leave to propose to your Correspondents; the con

sideration of the following questions : A. enters into an agreement with B. to sell his freehold estate. A. dies, and leaves two daughters, one niarried to an alien: Can a title be made, and who must convey? Does the king acquire any part of the estate? What estate has the wife of the alien? Pump-Court, Temple.

ЈАСов. .

IX. What is the most advisable Mode of Conteyance, where

T'itle-Deeds are lost.

IF the title-deeds of an estate are lost or mislaid, and no information whatever can be given of them ; What mode is the most advisable to make an effectual title to a purchaser ?

A SUBSCRIBER TO THE Law JOURNAL. Warrington, Jan. 27, 1803.

1. Perhaps, also, the regulations with regard to shipping-registeps may point out some things worthy of observation, as to the matter in question.





ARTICLE I.-- Notes of OPINIONS and JUDGMENTS delivered in

different Courts by the Right Honourable Sir John EARDLY WILMOT, Knight, late Lord Chief Justice of the Court of Common Pleas, and onc of his Majesty's most honourable Prity Council.

4to. 403 pp.-Cadell and Davies. 1802. THIS HIS work, which is handsomely printed * in quarto,

with a portrait of the Chief Justice, engraved by Heath, from a picture by Dance, is introduced with the following concise preface:

“ Some apology may be thought necessary for the publication of so small a number of cases as compose the present volume. 'The fact is, that some of them having been handed about in manuscript, and having been made use of in court, a strong opinion was expressed by several gentlemen of the profession, that however few in number, they were too valuable not to be made public.

“ They were certainly not intended by the learned Judge for publication; and some of them are not perfect

. There is no doubt but they would all have been equally valuable, if they had ali received his last correction; and still more, if his modesty had permitted him to revise them with a view to publication. As it is, the profession and the public will make allowance for the disadvantages under which they are presented to them."

The selection consists of judgments and opinions in the following cases, delivered in the respective courts to which the Chief Justice was occasionally called by the duties of his office,+ viz.

• The Editor has not given an index to the work, nor are the cases accompanied with a marginal abstract of the points determined. This we hope will be attended to in a future edition.

+ This volume also contains memoirs of his life, which were published separately.

VOL. III. N. if,

(b) Attorney General against Lady Downing and others

(statute of mortmain, devise to found a college), in Chancery. Lady Mansell against Sir E. V. Mansell and others (power

of jointuring), in Chancery. Bridgman against Green and others (securities given to a ser

vunt), in Chancery. Angwer to questions put to the Judges (writ of habeas corpus),

House of Lords. Evans aguinst Harrison (whether Dissenters finable for not

serving the office of sheriff), Commission of Errors. Spencer against All Souls College (founder's kin), Visitor. (c) Earl of Buckinghamshire against Drury (jointure of in

funt a bar of dower), House of Lords. (d) Baddeley against Leppingwell (devise in fee or for life),

King's Bench. (e) The King against Alnion (a libel), King's Bench. (9) Roe er dem. Dodson ngainst Grew (estate tail, or for

life), Cominon Pleas. (g) Drinkwater agninst Royal Exchange Assurance Com

pany (policy of insurance), Common Pleas. (1) Keiley against Fowler (bequest, aden to take effect),

House of Lords. (i) Wilkes against the King (Solicitor General, &c.), House

of Lords. (k) Bally against Wells (covenant), Common Pleas. (1) Frogmorton er dem. Robinson against Wharrey (estate

for life, or in tail), Cominon Pleas. (m) Low against Peers (covenant against marriage), Ex

chequer Chaniber.

(6) Vide Ambler, 550; 3 Vesey, Jun. 714.

(c) Vide 5 Bruun's Parliamentary Cases, 570; and Hargrare and Butler's Co. Litt. 366, n. 6.

(1) 3 Burr. 1533.

(e) This opinion was not delivered in court, the prosecution haying been dropped.

(f) Ilil. 7 Geo. III. 1767; 2 Wilson, 322. The latter part of this case is rather imperfect, and seems to contain only short heads of argument, which were probably filled up in the delivery.- Editur. But it is more full than the report in Wilson.Reviewer.

(g) Mich. Tern, 8 Gco. III. 1767 ; 2 Wilson, 363.
(h) 1st Feb. 1768, Brown's Cases in Parl, vol. vi. 309.
(i) 1768, Brown's Cases in Parl. vol. vi.

p. 345.
(k) Mich. 10 Geo. III. 1769; 3 Wilson, 25.
(1) 1770, 2 Blackstone, 728.
(m) 1770, + Burr. 2225.

(n) Sayer against Masterman (estate tail, or for life),


In a general view, perhaps, the most interesting opinion is that which was given in the House of Lords, on several questions put to the Judges by that house, upon the occasion of a bill, introduced by the popular party of the day, to alter the practice of the Court of King's Bench, on writs of habeas corpus in private cases, by allowing them to issue of Lourse. We shall state the questions, with a short abstract of the answers to each, which occasioned the rejection of the bill, that our readers may see fully the nature of the subject

House of Lords, Die Martis, 9° Maij, 1758. Upon the second reading of the bill, intituled, An act for giving a more speedy remedy to the subject upon the writ of habeas corpus, Sir John Eardley Wilmot, with the rest of the Judges, delivered his opinion, with his reasons, upon the following questions :

Ist. “ Whether in cases not within the act 31st Car. II. writs of habeas corpus ad subjiciendum, by the law as it now stands, ought to issue of course, or upon probable cause, verified by affidavit ?”

Answer."That it ought to issue only upon probable cause, verified by affidarit."

2d. “ Whether in cases not within the said act, such writs of habeas corpus, by the law as it now stands, may issue in the vacation by fiat from a Judge of the court of King's Bench returnable before himself ?"

Answer. “In the afirmative."

3d.“ What effect will the several provisions proposed by this bill, as to the awarding, returning, and proceeding upon returns to such writ of habeas corpus have in practice; and how will the same operate to the benefit or prejudice of the subject ?”

At the request of the Judges this question was waived by their Loruships.

4th. “Whether at the common law, and before the statute of kabeas corpus in the 31st of king Charles II., any, and which of the Judges could regularly issue a writ of habeas corpus ad subjiciendum in time of vacation, in all or in what cases particularly ?"

(n) June, 1757, Ambler, 311. This is the only case in this yo. lume which is not printed from Sir Eardley's own notes ; but it is a case of importance, and is not fully reported in Ambler.


[ocr errors][ocr errors]

5th question. “Whether the Judges at the common law, and before the said statute, were bound to issue such writs of habeas corpus ad suhjiciendum in time of vacation, upon demand of any person under restraint, or might they refuse to award such writ, if they thought proper ?”

Answer. “ I think the Chief Justice of the court of King's Bench, and the other Judges of that court, did, in faet, issue thein in va. cation before 31 Car. II., in criminal cases, and night do so on principles of law; possibly it might be done at first for the king only, and afterwards for the subject; but I do not think there was any settled course of practice observed in granting them, before the statute; and that such unsettled mode of practice produced the statute in the cases of bailable offences : and, in cases out of the act, usage has now fixed a regular course or manner of granting them ; but I desire to be understood, that the present usage of granting them must be supported upon such principles of law as would have supported the granting them when such usage first began. And I think they were not bound to grant them upon the demand of any person under restraint at the common law, and before the statute, any more than they are bound to grant them now upon demand. There must have been some case made, before they could be bound to grant them, at any time.”

6th question. “Whether the Judges at the common law, and before the statute, were bound to make such writs, so issued in time of vacation, returnable “ immediatè;" and could they enforce obedience to such writ so issued in time of vacation, if the party served therewith should neglect or refuse to obey the same, and by what mcans ?"

Answer. “To the first branch of this question in the negative ; to the latter-I think the Judges cannot enforce obedience to any writs of habeas corpus issued in time of vacation (whether they issue in cases within the 31st Cur. II., or in cases out of that act), if the party served therein should neglect or refuse to obey the same, by any means, but by an attachment for a contempt which can only issue out of court in term time.”

7th question. “Whether, if a Judge before the said statute, should have refused to grant the said writ, upon the demand of any person under any restraint, the subject had any remedy at law, by action or otherwise, against the Judge for such refusal ?"

Answer. “ I think that the subject bad no remedy at law, by action or otherwise, against the Judge for such refusal. The denying a writ stands upon the same ground as any other breach of duty.”

8th question.“ Whether in case a writ of habeas corpus ad suhjiciendum at the common law be directed to any person returnable " immediatè,” such person may not stand out an alias and pluries hubeas corpus, before due ubedience thereto can be regularly enforced by the course of the common law?"

Answer. “ I am of' opinion, that in case a writ of habeas corpus and subjiciendum, at the common law, be directed to any person returnable

[ocr errors]
« 이전계속 »