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sons in the island; and 5, into the administration of certain public
! ; charities.
Now, it may be thought advisable to include, within the scope of the commission, the other Channel islands in addition to Jersey.*
That the ancient laws and customs here referred to, as well as the qualities and tenures of land and its incidents, should be thoroughly understood before they are attempted to be meddled with by parliamentary reformers, is an essential condition, and highly desirable ; and so a commission, if it issues, should be very carefully constituted. We regret to say that comprehension of the subject is not always considered an essential preliminary to sweeping subversion or obstinate maintenance of institutions. There is no doubt that ancient customs, and the laws of olden times, may outlive their beneficial purposes; and that they occasionally require modification, or even annihilation. When the right and power is preserved among a free people of regulating their own legal and social customs, the habit of self-government thus engendered generally saves their country from the anomaly and inconvenience of the institutions and procedure being immediately at variance with the wants and character of the people. The laws and the community may not be invariably of commensurate growth, but we do not find revolution or external influences requisite to effect the desired concord between them. How this royal commission comes to be wanted, and how it will operate, we do not know; but we trust that the interests of the inhabitants of the Channel islands, as well as those which England has in their contentment and prosperity, will be well considered before any important steps be taken to remodel their laws, customs, or institutions; and that those to whose hands the duty of inquiry and recommendation is confided will recollect, that sometimes what is theoretically ill-advised or peculiar in the eyes of a stranger, may, nevertheless, work very satisfactorily to those habituated to their own forms.
It requires an enlarged and acute understanding to reform even that with which we are ourselves familiar, and to remedy that
* We regret that this course has not been taken.-ED.
which affects us, according to our own experience and knowledge; à fortiori is it a task demanding sagacity, temperance, deliberation and carefulness, when the ancient code of a people, who cherish especially their own nationality, is to be brought to the inquisition and tests contemplated, we presume, by the House of Commons, in their purposed address to the Crown.
ART. III.-COSTS IN THE PROBATE COURT.
PHILOSOPHIC writer in this Magazine has lately sug
gested a new theory of costs, and has supported it by convincing reasoning. *
For any improvement in the theory of law we all should be grateful. But whilst we are seeking to obtain what is not, we are in danger of losing an excellent doctrine of costs already having a de jure existence. The doctrine of costs to which we now allude is one of equitable range and application, and the loss and injury to the interests of the public through its extinction or suspension will be great, abstractedly and practically.
The prevailing and anxious feeling of the present age is for an infusion of equity and equitable principles into every branch of the body of the law. The harshness of law is not felt and deplored, until its empire is complete and superior to all evasion. A want of equity is therefore more felt, now that law, the mere strictum jus, is obeyed without hesitation or reserve. One of the equitable doctrines of costs in vogue in the Prerogative Court forms the subject of this article. The doctrine alluded to is that of giving costs out of a deceased person's estate to the unsuccessful party in a testamentary suit. This doctrine, as we have said, has a de jure existence; for the 29th section of the Probate Court Act, 1857, provides that “the practice of the Court of Probate shall, except where otherwise provided by the act, or by the rules or orders made under the act, be, so far as the circumstances of the case will admit, according to the practice in the Prerogative Court."
* L. M. & R., Vol. V. p. 301, August, 1858.
Rule three of the Contentious Rules of 1857, also provides that next of kin and others who, previous to the passing of the act, had a right to put executors, or other parties entitled to administration with the will annexed, upon proof of the will in solemn form of law, shall continue to possess the same rights and privileges, and be subject to the same liabilities with respect to costs as heretofore."
It may be therefore safely concluded that it was the intention of the legislature, and the framers of the rules, to invest the new court with all the equity of the old one, at the same time that it created a procedure for that court better adapted to the exigencies of the times. It is equally inferrible that the legislature intended
. the annihilation of the old feud of the Courts Christian and the Common Law. Courts, by erecting a new judicature formed on the best principles of both.
These were the real, if not the avowed ohjects of the legislature in making a new tribunal, instead of merely transferring the jurisdiction of the old courts to the existing Common Law Courts, as urged by Mr. Collier, whose arguments, unless met by such reasoning, would have been irresistible.
As all the world knows, the procedures of our native Common Law Courts, and of our native Ecclesiastical Courts, were not more contrasted than their principles were repugnant to each other.
“ Numina vicinorum Odit uterque locus, quum solos credat habendos
Esse deos, quos ipse colit.” And there was no hope of reconciliation or assimilation of these conflicting principles in the separate existences of the two lawsthe ecclesiastical and the municipal—on the subject of the litigation of wills. But the country and the legislature knew that there was much good and fertilizing matter in the old Augean stable, and therefore judged that it could be transferred to other ground with great prospective benefit to the English public. For these reasons, it was determined not purely and simply to make a Common Law Court, but to make a Court of Probate, approximat
ing in its procedure to the Common Law, but also, in all respects where it could be done, resembling the other in its principles.
The general subject of the court and its practice we do not propose here to discuss. It is our intention only to touch upon one point, and that is, the mode of treating or administering the subject of costs which obtained under certain conditions in the Prerogative Court, and which has been, inter alia, invocated into the new court, as we have seen.
In the Prerogative Court a wholesome equity prevailed upon the subject of costs, after sentence given for or even against a will or codicil. This equity might be claimed, and would be allowed to a next of kin or to an executor, under circumstances which, in a common law court, would have brought upon either a condemnation in the costs of the other side. An ousted next of kin might impugn the execution of a will, the capacity of a testator, or his freedom from control or importunity; upon all or any of these suggestions, he might impose upon an executor a searching curial inquiry into all the circumstances preceding, attending, and following the preparation and execution of a will. He might set up, in antagonism to the will, an array of facts which would call for a rebuttal, or at least an explanation. He might do all this, and fail in obtaining sentence against the will. And yet the court would not only not visit him with the executor's costs, but would give him all the costs of that unsuccessful opposition out of the testator's personal estate.
Again, an executor might set up (or as it was called propound) a will or a codicil, which the court, upon better information than the former possessed, might pronounce against. And yet the executor's costs would be allowed him out of the estate. This was a practice of the Prerogative Court constantly acted upon, and never liable to be misunderstood by the judge or the practitioner. The principle which underlay this practice may be formulized thus :-It was an assumption that a man might set up a will, and that a man might dispute a will, without necessarily, in case of failure, being culpable of such conduct as should make it requisite or desirable that he should be punished with costs; for costs are,
VOL, VII. NO. XIII.
undeniably, as much a punishment to the one party as they are an indemnification to the other. The court supported this assumption, by holding that the matters and circumstances attending the preparation and execution of a will might be entirely out of the personal ken of either executor or next of kin; and that, independently of the instrument itself, all necessary information might have to be gained from other persons, who might colour, garble, or altogether withhold from the interested inquirer all that vitally concerned him, and that he most wanted to know. An inquiry made by such a person, under such circumstances, the judge knew to be always useless, and generally impracticable.
This state of things, in the opinion of the court, plunged the party into an inopia consilii, disabling him as well from inquiring accurately, as from deciding justly, upon his own case, from which the court only could relieve him, by making the inquiry as well as pronouncing the decision for him. But as the court made the inquiry for him on general principles, and for the protection of society, it followed that the court should relieve him from the consequences of costs, if his conduct in promoting the inquiry was marked by no more than a just regard to his own legitimate interests. And this was the practice of the court which we are now considering
Dr. Tristram, in his excellent little treatise upon the practice of the Probate Court in contentious matters, lays down Four Canons upon this subject. He says—"Where a party has unsuccessfully contested the validity of a will, and his case comes within one of them, he will be entitled, subject to certain limitations which will be mentioned, to costs out of the estate.
“1. When a party has been led into the contest, whether as plaintiff or defendant, by the state in which the deceased has left
“ 2. When there is reasonable doubt as to the testator's testamentary competency at the time of the execution of the will.
“ 3. Where a party, principally benefited by the will opposed, has been guilty of improper acts, which have exposed him to the suspicion of fraud or undue influence in procuring its execution.