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Thirdly. The use of lighted candles on the communion table during the celebration of the Holy Communion, such candles not being wanted for giving light.
Fourthly. Using incense in the celebration of the holy communion.
Fifthly. Mixing water with the wine used in the administration of the holy communion.
And Mr. Mackonochie was condemned in the costs both of the original suit and of the appeal.
NECESSARIES FOR INFANTS. — The case of Ryder v. Wombwell, Law Rep. 3 Ex. 90, has been carried by appeal to the Court of Exchequer Chamber. The point decided in the Court of Exchequer, as given in 2 Am. Law Rev. 681, is as follows: “ The plaintiff sold to the defendant a mirror, a pair of jewelled solitaires, which might be used as sleeve-buttons, worth £25, and an antique silver goblet worth £15, which last the plaintiff knew the defendant intended for a present. The defendant was the younger son of a deceased baronet, with no establishment of his own, and an allowance of £500 a year. In an action for the price of these articles, the question whether they were necessaries was left to the jury, who found that they were. Held (by KELLY, C.B., and CHANNELL & Pigott, BB.), that the question was rightly left to the jury, but that the finding as to the goblet was wrong; and that, therefore, there ought to be a new trial. Per BRAMWELL, B., that neither article was a necessary, and that both findings were wrong."
In the Court of Exchequer Chamber, it was held, that the question whether the solitaires were necessaries, had been wrongly left to the jury, and that the court ought to have held, as matter of law, that they were not necessaries.
Since the above decision, an interesting case has arisen at nisi prius in the Queen's Bench, before the Lord Chief Justice, -as the case will not come into the regular reports, we insert the following account of it, taken from the Law Times Reports, vol. xix. (N.s.) 398.
GENNER AND ANOTHER U. WALKER.
Infant - Necessaries Direction to Jury. The case of Ryder v. Wombwell, 17 L. T. Rep. N.s. 609, carried to a Court of Error, apparently decided that the judge should himself direct the jury what are and what are not necessaries.
Held, by Cockburn, C.J., that if this case was to be taken to be the law, he must be bound by it, but that the correct view of the question was, that it is for the jury to say what articles are reasonably necessary with reference to the position of the infant.
Semble, presents to a bride, who eventually becomes the defendant's wife, may be necessaries.
Betting-books are not necessaries.
This was an action brought against the defendant, who was an infant at the time when the debt was contracted, to recover a sum amounting to nearly £200, for articles, principally consisting of ornamental stationery and jewellery.
The defendant pleaded infancy, and that except as to £40, the articles were not necessaries.
Coleridge, Q.C., Parry, Serjt., and John Griffits, appeared for the plaintiff'; Hawkins, Q.C. and Benjamin were for the defendant.
It appeared that the defendant was the son of a gentleman whose annual income was stated not to be lower than £3,000 per annum; and the defendant was allowed during his infancy, from £700 to £1,000 per annum. The bill comprising the articles in dispute was this :
the above cases
Considerably more than the above had been ordered by the defendant; but the plaintiffs, upon hearing of the defendant's extravagance, took back such things as were not damaged. A year before attaining his majority, the defendant married, and at the time of action brought was the father of one child.
Evidence was given to prove the delivery of the articles, and the fairness of the prices, “ according to the custom of the plaintiff's house."
Hawkins, at the close of this evidence, submitted that there was no case, on the ground that there was no evidence to show that any of the articles not covered by the £40 paid into court, were necessaries. According to the recent case of Ryder v. Wombwell, in which the judgment of the Court of Error was delivered by Willes, J., it was for the judge to rule that articles, which clearly could not be necessaries, were not so.
COCKBURN, C.J., said that evidence must first be adduced to show the circumstances of the defendant, who, it was alleged, might have as much a s £8,000 per annum.
Evidence having been called for the defence, it appeared that the defendant, until 1866, had only £700 a year, and then only £1,000; and had contracted betting debts to the amount of nearly £20,000, and altogether debts to the annount of £40,000. He had married before he was twenty: he had married a young lady about fifteen, and since had a haby whose age was scarcely a year.
COCKBURN, C.J. You do not think a wife a necessary ?
Hawkins replied that she was not for a youth of twenty, and that if she were, a baby was not.
COCKBURN, C.J., here said: I have been reading the judgment delivered in the Court of Error, and I really cannot understand it, unless it means that it is to be a question of law for the judge to determine whether the articles disputed are, or are not, necessaries. If that is to be taken to be law, of course I must act upon it, but I should certainly have preferred the law as it was previously understood to be — that it was for the jury to say what articles were reasonably necessary with reference to the position of the defendant, the infant. The Lord Chief Baron, in that case, had done, as I should have done upon that view of the law; that is, he had left the case to the jury. The Court of Error, however, appeared to upset that. The question, then, was as to a pair of solitaires (or shirt-fasteners), and a goblet, which certainly was not necessary, and it was eliminated from the claim in the court below. The question was thus reduced to the solitaires, as to which the Court of Error, notwithstanding the verdict of the jury, gave judgment for the defendant. Of course, if that is the law, I must act upon it, and one thing I have no difficulty in laying down, – that bettingbooks cannot be necessary for a young man under age, and certainly not betting. books so rich and costly.
Hawkins, then, with reference to the ear-rings, concluded that they were not necessaries, although presented to the defendant's bride. Of that, moreover, there was no evidence, the defendant having had them two years before his marriage.
COCKBURN, C.J. If they were purchased for one young lady, and the defendant was engaged to marry another, they could not be necessary. But, assuming that they were for the young lady he was engaged to be married to, there would be nothing that was not very natural in the presentation of them by a young gentleman of some thousands a year to the object of his affections.
The defendant's case being closed, COCKBURN, C.J., asked Coleridge what he thought of the effect of Ryder v. Wombwell?
Coleridge (who was counsel in that case). Well, my Lord, I am bound to say that I think it does in effect come to what you have stated; namely, that it is not for the jury, but for the judge, to say whether an article is necessary. That, certainly, is what it came to, for the jury found the solitaires necessary, and the court directed judgment to be entered for the defendant. That, certainly, is quite contrary to a long series of decided cases, and to the law as it had been always understood to be: but that is what it comes to.
COCKBURN, C.J. So it seems to me; and, of course, however contrary that view of the law may be to my own, I am bound to follow it. The difficulty, however, in doing so, is that it seems to render it the duty of the judge to determine the case on some abstract view of his own, without reference to circumstances, which are naturally for the consideration of the jury, - the amount of income, the rank or position of the infant. On the whole, perhaps, the better and safer course would be to leave the case to the jury in the usual way, taking their view upon it; reserving leave to the counsel for the plaintiff to move, or
to except to the ruling, if the result should render it necessary for him to do so. It may be, however, that the jury and I may not differ upon the subject.
Coleridge, to the jury, observed, that the objection to the new view of the case presented by the judgment in the Exchequer Chamber the other day was, that it would make the determination of these cases turn so much upon the individual tastes or ideas of the judges. For instance, as to smoking, Sir Benjamin Brodie vehemently objected to it: and perhaps a judgment against cigar cases might result from Baron Bramwell's disliking it. He meant no disrespect to that able and independent judge; on the contrary, in proportion to the originality and independence of a man's mind, might he naturally be disposed to determine cases upon his own ideas, whereas surely the safer course was to let a jury determine it. And, further, some of the articles might be necessary, although they need not be so costly.
COCKBURN, C.J., having summed up, the jury found that the sum paid into court was sufficient, but the learned judge gave the plaintiff's counsel leave to enter the verdict for them in the event of the court being of opinion that he ought, in accordance with the recent case, to have directed the jury that the things were, or were not, necessaries. But he agreed in the verdict of the jury.
Hawkins said that the leave to move could only be available in the event of the jury disagreeing with the judge. Here both had agreed on a verdict for the defendant.
Verdict for the defendant.
M. BERRYER. — The following notice of M. Berryer is taken from the Solicitors' Journal :
“ In Lord Brougham, we lost a lawyer and politician who connected the England of the present day with the England of Chatham and of Queen Caroline. In M. Berryer, France has lost a lawyer ånd politician who linked the France of today to the France of Bonaparte and of the Hundred Days. M. Berryer died at Paris, on Sunday morning, in the seventy-eighth year of his age.
“Pierre Antoine Berryer was born in Paris on the 4th of January, 1790. His father, who lived to see his son at the height of his fame, was himself an advocate in large practice at the French Bar. Berryer, therefore, had what we should call an excellent start in his profession. A story is related in the Souvenirs de M. Berryer père of Pierre Antoine Berryer's presence, when a child of little more than two years old, at the Court of Assize at Blois, where his father, whom the troubles of the Revolution had driven from Paris, was pleading against the Defenseur Officiel, and of his childlike impatience at the tedious speech of his father's opponent. Whether this anecdote be true or not, this, at least, is true : that forty years later Berryer fils was arraigned before the same Assize Court of Blois, pleaded his own cause, and obtained his own acquittal. Berryer was placed by his father at Jouilly, a sort of Balliol among French colleges, where, it is said, his exceptional talents at once displayed themselves. He would not always be industrious, however, if he did not like the task, and his capricious fits of idleness were many. He married at twenty-one, and was launched into his profession during the latter days of the Empire, when Bonaparte's successes, however, were still at their height. As a very young man, he seems to have been, if not a Bonapartist, at any rate a sharer in the enthusiasm of that day. When Louis XVIII., however, came in, Berryer appeared as a staunch Loyalist, and throughout his career he was a consistent Legitimist. When Bonaparte returned from Elba in 1815, Berryer joined the volunteers in support of the Royal cause. But he was no blind follower of a cause, and threw all his great energy into the defence of Marshal Ney and others of Napoleon's generals, to which, probably, and to some of his writings published about this time, is attributable an estrangement which took place between Berryer and the bulk of the Royalist party. He appeared for the first time in the French Parliament in 1830, as member for the electoral college of Puy, and at once took a foremost position in the ranks of the Government party of the day. To qualify himself for election, he had purchased an estate at Augerville, and his candidature seems to have been consequent on the solicitations of Polignac, then at the head of affairs. Though a supporter of the Government, however, Berryer was still, as ever, very independent, and refused to fetter himself by accepting a portfolio under Polignac. His parliamentary life must have cost him a large portion of his earnings as an advocate, since at the time of his candidature he was immersed in heavy business, and six years afterwards, while still the leader of the Legitimists in the Chamber, we find his Augerville estate put up for sale, in consequence of which a subscription was with some difficulty raised by several Legitimists, Berryer's friend, Chateaubriand, among them, and the necessity for this sale was obviated. Meanwhile, after the Revolution of the 28th of July, which finally dismissed the Bourbon dynasty, he still maintained his efforts for the Legitimist cause; but when the Duchess de Berri, too impatient to wait, appeared in arms in La Vendée, Berryer was deputed by the chiefs of the party to attempt to persuade her from prosecuting a rash and premature attempt, which could only ruin the cause it was intended to establish. Berryer travelled · to La Vendée, his being retained in a cause at Vannes, affording him a pretext for a journey, had an interview with the Duchess, but failed in persuading her to abandon her attempt. While on his way back he was arrested on a charge of conspiring to arouse a civil war. This was in 1832, and after several months' detention, he obtained his own acquittal. As the cause of the Bourbons became more hopeless, the career of Berryer ceased to be marked by episodes so extraordinary, becoming that of the successful advocate, and the politician of Legitimist principles, and unwonted independence. In 1840, he pronounced his celebrated defence of the present Emperor, who was shortly afterwards condemned to perpetual imprisonment in the fortress of Ham, and in 1863, occurred his equally celebrated defence of Montalembert. The last event, for which we remember M. Berryer in England, is the dinner at which he was entertained in the Inner Temple Hall a few years ago.
“ As an advocate, M. Berryer possessed all the concentration and the power of quickly fathoming and grasping complicated details, by which some of the eminent of our own Bar leaders have distinguished themselves. But it was the passion of his fervid and imperious eloquence which marked him. French law is not so much as the law of England a subject for deep study, and as an adva cate, Berryer more nearly resembles Erskine than any English lawyer now living. In his indomitable energy he resembles Brougham. With his immense eloquence, his untiring energy, and his disposition to an active political life, he would, had