We know a college Don who objects to railways; says the old posting system was quite fast enough, and so was one mail a day and accordingly he regularly posts to Cambridge, and his gyp retains the afternoon's letters for the next morning's breakfast table. We know another old lady who still posts between London and Brighton: and on the only occasion on which she trusted herself to the railway, stopped for lunch at Reigate till the next train: it would have been too much to come on all the way at once. Shall imbeciles like these dictate to Brunel and Stephenson, or control the traffic of two hemispheres? Yet this would not be more absurd than if such measures as that now about to be brought forward in the House of Commons should be allowed to pass into law, under the guise of provisions for the better administration of justice in the Court of Chancery.

We are getting tired of this miserable, abortive misnomer; but the indecent assault upon the Chancellor's ecclesiastical patronage must not be passed over without pointing out, that of all members of the government the Chancellor, who generally rises from the middle class of society, and remains long labouring in that class, untainted by party, unspoiled by birth or connexions, is eminently the best qualified to be the distributor of crown livings. Constantly in contact, at college and at the bar, with a large circle of companions, clients and competitors, all his equals, in the honest business of life, it is much more probable that proper cases for promotion will be brought before his notice than before the Prime Minister of the Crown, the great mass of whose petitioners must necessarily have come in contact with him as inferiors, and we are afraid we must add in the most dishonest business of life, general elections. It would open a new and a most infamous and calamitous system of bribery, if the votes of Horsham, Harwich or St. Alban's were influenced by the prospect of the all potent influence of their representative upon the distribution of the cures of souls. Every member of the legislature should set his heel on such a clause -which comes with additional ill grace from the mouth of a speaker, who has just been lamenting the probable difficulty of obtaining an efficient person to take an office to which he dare not venture to affix a salary, but from which he does not scruple to remove the greater part of patronage and power.

B.

ART. VIII.-SAUNDERS ON PLEADING AND
EVIDENCE.

The Law of Pleading and Evidence in Civil Actions arranged alphabetically, with Practical Forms, and the Pleadings and Evidence to support them. By John Simcoe Saunders, Esq. Second Edition. By Robert Lush, Esq., Barrister-at-Law. London: Sweet; Maxwell; Stevens and Norton. 1851.

ERY highly as Judge Saunders has been esteemed for the profound work with which the name of Williams is identified, we very much doubt whether his namesake has not left behind him a still more valuable memorial of an acute and laborious mind in the volumes before us. We well remember, in our own noviciate in a pleader's chambers, regarding the then obsolete edition of this work with infinite respect, and being told that it was by far the ablest and clearest exposition of the science we were striving to master, though practically useless by the modern changes, which rendered a new edition essential to restore its utility. That service to the profession Mr. Lush has now rendered with remarkable diligence, talent and success. A more thoroughly practical and complete book does not exist in the literature of jurisprudence. It is a perfect vade mecum for the pleader and advocate. We cannot point out a single want it does not supply as regards either the pleading, practice or evidence involved in a suit at law. It forms almost a solitary exception to our rooted abhorrence of large law text books; for this is no patchwork performance, and indebted in no degree to the scissors and digest.

The object is to present under the heads of action, pleading and evidence, every possible information and guidance which the practitioner can require not only under each generic form of action, but under each species; so that the work answers the same purpose for which originally three or four different works had to be used. It is complete as a text book on civil remedies, and the nature of each kind of action. Secondly, as a work of precedents for pleading under each kind of suit, as well for the plaintiff as defendant; and thirdly, it gives copious and ample instructions for the evidence to support each of them. The following is a specimen of the mode in which this is done, and will serve to show the skilful and yet natural manner in which the subdivisions of each branch are methodised.

The general heading is "Executors and Administrators:"As stated in the preface to the first edition :

"The arrangement of each separate title is, as nearly as possible, uniformly the same, and wherever subdivision is required is explained by the list of contents at the head of each. Whenever the laws of pleading and evidence have been combined, the arrangement of the title is as follows:-As regards the plaintiff, first, his remedy is described; then the law which governs the form of that remedy; next the form itself; and, lastly, the evidence required to support that form. As regards the defendant, a similar course is pursued; instructions are first given as to the choice of his plea; next, as to the manner of framing it; and, lastly, the evidence required to support it."

"Form of Remedy and their Liabilities.

"Form of Pleadings.

"Declarations.

"Pleas.

"Statute of Limitations.

"Plene administravit præter.

"Replication.

"Precedents.

"Evidence for Plaintiff.

"Of Defendants being Executors or Administrators.
"Of Assets.

"In Action suggesting a Devastavit against Executor de son

Tort.

"Evidence for Defendant.

"In Answer to Assets.

"In Disproof of Defendants being Executors.

"Mode of enforcing Judgment."

The concise yet sufficient mode in which the necessary instruction is given may be judged of by the following extract taken from the same chapter :

"EVIDENCE for Defendant.

"By R. G. 4 Will. IV. r. 20, in actions by or against executors or administrators, the character in which the plaintiff or defendant is stated on the record to sue or be sued shall not in any case be considered as in issue, unless specially pleaded. The evidence for the defendant with regard to the cause of action differs in no respect from those between other parties. The nonjoinder of another executor as co-plaintiff is only matter for a plea in abatement (1 Saund. 291; see 'Abatement'). Payment of a debt to an executor, who has obtained probate to a forged will, is a discharge in an action brought against a debtor by the rightful administrator, on revocation of the probate (Allen v. Dundas, 3 T. R. 125). But a payment of money under a probate of the will of a living person would be void (Ib. 130; and see Wolley v. Clarke, 5 B. & A. 744). Where an executor sues on

VOL. XIV. NO. XXVII.

S

a promissory note, and lays a promise to himself, the plea of non assumpsit is a denial of the promise so laid, but not of the making of the note (Timmins v. Platt, 2 M. & W. 720; Gilbert v. Platt, 5 Dowl. 748). The defendant cannot prove that a person other than the plaintiff was appointed executor, &c., or that the testator was insane, or that the will, of which the probate was granted, was forged; for that would be directly contrary to the seal of the ordinary, in a matter within his exclusive jurisdiction (Noel v. Willes, 1 Sid. 359; 1 Wms. Executors, 422). But the defendant may show on a plea ne unques executor that the deceased had bona notabilia in divers dioceses, and that the inferior jurisdiction had no power to grant probate, &c. (ante, p. 1127). A defence, however, that although the probate is valid, the particular debt did not pass under it, must be specially pleaded (Stokes v. Bates, supra); and under a plea ne unques executor, it may be shown that the supposed testator or intestate is alive, for there the Ecclesiastical Court can have no jurisdiction (Allen v. Dundas, 3 T. R. 130); so, that the seal attached to the supposed probate has been forged (Marriot v. Marriot, 1 Stra. 761); or that the letters have been revoked (B. N. P. 247). The defendant may plead that he has paid the debt, which is the subject of the action, to an executor, who had obtained probate of a forged will unrepealed at the time of payment (1 Wms. Executors, 424; Allen v. Dundas, 3 T. R. 125). On a plea of the Statute of Limitations to a declaration containing only counts on promises to the testator, the plaintiff will not be allowed to give evidence of promises or acknowledgments to himself after the death of the testator (Sarell v. Wine, 3 East, 409; Tanner v. Smart, 6 B. & C. 608).”

"COMPETENCY OF WITNESSES.

"A paid legatee is a competent witness to increase the estate (Clarke v. Gannon, Ry. & M. 31). A legatee, who has not received his legacy, is a competent witness for the executor in an action brought against him for demand for mourning (Johnson v. Baker, 2 C. & P. 207). A person having an unsatisfied demand upon the insolvent estate of the testator or intestate is not a competent witness for the plaintiff (executor), as he has no means of obtaining any sort of satisfaction for his debt unless the plaintiff succeed in the action, when a fund will be created, out of which he may be satisfied (Craig v. Cundell, 1 Camp. 381). In an action by an executor or administrator, for a debt due to the intestate, a creditor of the intestate is a good witness to prove it (Paull v. Brown, 6 Esp. 34, recognised in Nowel v. Davies, 5 B. & Ad. 371). A creditor is a competent witness for an administrator, to prove due administration by payment of a debt to himself (Star. Ev. 776; see Carter v. Pearce, 1 T. R. 164; Davies v. Davies, Moo. & M. 345; but see Wms. Exors. 1490, n. (t); Burghart v. Hall, 4 M. & W. 727, n.; and Bloer v. Davies, 7 M. & W. 235, 240, 241). See now 6 & 7 Vict. c. 85; post, Witness.'

"In trespass against an administrator for taking goods, one of the next of kin is competent, for the defendant, to prove property in the

intestate (Thomas v. Bird, 9 M. & W. 68). In an action for funeral expenses against one not executor, a residuary legatee is competent for the plaintiff, for the reasonable expenses are ultimately chargeable on the estate (Green v. Salmon, 8 Ad. & E. 348). So an annuitant creditor is competent to defeat a claim on the assets (Nowell v. Davies, 5 B. & Ad. 368; as to the admissibility of a legatee, see Burghart v. Hall, 4 M. & W. 727, n.)

"In an action against the defendant for the value of a horse bequeathed to him by A., A.'s executor and residuary legatee was held, under 3 & 4 Will. IV. c. 42, s. 26, a competent witness to the prove property in the horse' was in the plaintiff at the time of A.'s decease (Bowman v. Willis, 3 Bing. N. Č. 671; 1 Jur. 262). In an action against an executor de son tort, it was held that the widow of the deceased was not a competent witness to support the plea of plene administravit, by showing that the deceased had, a short time before his death, executed an assignment by deed of all his property to the defendant (Yardley v. Arnold, 6 Jur. 718; 10 M. & W. 141); nor can she be rendered competent by indorsing her name on the record under 3 & 4 Will. IV. c. 42, ss. 26, 27."

"Costs.]-By the 3 & 4 Will. 4, c. 42, s. 31, it is enacted, that in any 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.' Executors and administrators are now on the same footing as to costs as other plaintiffs, except where the court sees that they have been misled by some misconduct on the part of the defendant, or unless some other very peculiar ground be laid for the interference of the court, and the court would not interfere where the action was brought bonâ fide with apparently reasonable grounds for suing, and that the plaintiff was taken by surprise by the defence (Southgate v. Crowley, 1 Bing. N. C. 518; Godson v. Freeman, 2 C. M. & R. 585; Engler v. Twisden, 2 Bing. N. C. 263; see also Wilkinson v. Edwards, 1 Bing. N.C. 301; Prole v. Wiggins, 3 Bing. N. C. 235). Where the judge makes the order exempting plaintiff from costs, it is final (Meddock v. Phillips, 3 Ad. & Ell. 198; but see Lakin v. Massie, 4 Dowl. 239). application should be made before the taxation takes place (Ashton v. Pointer, 5 Tyrw. 326; 1 C. M. & R. 738). Executors will not be exempted from the payment of costs under the 3 & 4 Will. 4, c. 42, s. 31, unless there has been a positive and wilful misrepresentation made by the defendant, mere silence as to his intended defence not being sufficient (Birkenhead v. North, 11 Jur. 436, Q. B. N. P. C. 188; 9 Law T. 106).

The

One thing has struck us as being possibly urged against the