Page images

The Solicitors' Journal.




the whole of the pleadings. This rule works well, and LONDON, DECEMBER 4, 1880.

the duty prescribed is rarely omitted. But no similar provision exists as to the Court of Appeal, and it often

happens that the parties are not prepared at the hearing CONTENTS,

of an appeal to furnish the requisite papers. Not unCTERIST TOPICS

frequently the only copy of the order appealed from is

| contained in counsel's brief. Until some rule is made TEE WIFE'S AGENCY ......................... A NEW JCRISDICTION ..........

| requiring papers to be furnished on setting down appeals, RETIIWS ................

| the appellant's solicitor should be careful to have them GESERAL CORESPONDEXCE .........

in court at the hearing. Three sets of papers should be CASES OF THE WEEK .......

provided for the use of the judges, and one set for the CASES BEFORE THE BANKRUPTCY REGISTRARS.............

use of the officer attending the court.
SOCIETIES ...............
LAW STUDENTS' JOURNAL ...................................

IT IS UNDERSTOOD that at the meetings of the Council LEGAL APPOINTMENTS ...................................

of Judges on Saturday and Monday last the proposals of COXPASIES .................................................

the Lord Chancellor for the merging of the Queen's OBITTARI .................................................

...... 10

Bench, Common Pleas, and Exchequer Divisions into & CREDITORS' CLAIMS........................................ BANKRUPTCY LAW AMENDMENT..............

single Division, and the abolition of the offices of Chief REAL PROPEETY LAW REFORY .............................

Justice of the Common Pleas and Chief Baron of the Corat PAPERS

...... 105 Exchequer, were accepted by a large majority. Full LOSDON GAZETTES, &c., &C..........

effect cannot be given to these recommendations without

an Act of Parliament, and this necessary delay will give CASES REPORTED IN THE WEEKLY REPORTER. the opportunity, and we trust will suggest the propriety, Alderson v. Maddison (Ex.Div.) ......


of making some further alteration in the conduct of Alina," The. Brown v. “ Alina "

business. Some alteration is obviously necessary, for Cope, In re. Cope v. Cope (Ch.Div. M.R.) .....

the foundation on which the present divisional courts Dicks v. Brooks (App.) ................ ...... Gothard and others, Petitioners, v. Clarke and others, Respond

rest is itself removed when the Divisions are abolished. ents (C.P.Div.) ................

102 The reconstitution of divisional courts for general Jeuner v. Turner (Ch.Div. V.O.B.) ... Van Hagen, In re. Sperling v. Rochfort (App.) ............ 8+

business may perhaps be found no more rational or Wallingford v. The Mutual Society (H.L.)

convenient than was the creation of the short-lived diviWarburton v. Heywood (App.) .......

sional court at Lincoln's Inn for the hearing of county West India and Panama Telegraph Company (Limited), The, v. The Home and Colonial Marine Insurance Company (Limited)

court appeals. The abolition of divisional courts would (App.) .........

no doubt necessitate some addition to the business of the Court of Appeal, and probably some alteration in the

conduct of business before the judge in chambers ; but CURRENT TOPICS.

such changes would be well repaid by the simplicity and order which would take the place of the present confusion

and uncertainty. THE FOLLOWING are the statistics of the Final and Intermediate Examinations, held last month :-At the Final Examination the number of candidates examined was THE COUNCIL of the Incorporated Law Society have 214; the number of those who passed, 172; and the resolved upon the following suggestions as to the prenumber of those who were postponed, 42. At the Inter

sent law of bankruptcy, and the alterations and mediate Examination the number of candidates exam amendments which should be made therein :-" It is deined was 358; the number of those who passed, 274;

sirable that when a person becomes insolvent, there and the number of those who were postponed, 84.

should be one uniform mode of proceeding-viz., by bankruptcy. Proceedings in bankruptcy ought to be

commenced by a debtor by petition, accompanied by an THE MASTER OF THE ROLLS has signified that the form account of his assets and debts, verified by affidavit; or of order for production of documents in cases in his by a creditor by petition, with proof of debt, and that chambers is, in accordance with the Judicature Act, to the debtor has failed to pay the same within fourteen provide that the person desiring inspection of documents, days after demand, or has committed some other act of who wishes also to take copies and extracts, shall do so bankruptcy; and the filing of any such petition should be "at his own expense." This is a return to the old a stay of all proceedings against the debtor unless and practice in this respect before the Judicature Acts, which until the court shall otherwise direct. On a debtor being has since been varied by the chief clerks. A reference declared bankrupt, or previously, after petition, if the to form H. 16, in the schedule to the Rules of April, court shall so order, his estate ought at once to be taken 1880, will show that the form of order to produce docu- | possession of by a receiver appointed by the court, until ments for inspection in use in the Central Office is the appointment of a trustee. Trustees ought to give framed in accordance with the direction now given by security in all cases, whether or not this be required by the Master of the Rolls.

the creditors, but the court should have power to regulate the amount of the security, or to dispense with it

altogether. Such remuneration only ought to be paid CONSIDERABLE INCONVENIENCE has been caused to to trustees as is allowed by general or particular order the judges of the Court of Appeal by the non-deli of the court. Trusttes ought to render accounts to a very of sets of papers on the hearing of appeals. proper officer of the Court of Bankruptcy, and pay their Order 36, rale 17a, provides that the party entering an balances into court, as is now done by receivers in chanaction for trial shall deliver to the officer two copies of cery, under a penalty for neglect. Any creditor ought to be able, at his own expense, by leave of the court, to armour" who are to wear the insignia, without discharging summon the bankrupt before the court, and to examine any of the functions, of those they simulate. When a him as to his assets, debts, and dealings, and also to mind that set out with so stern a logical purpose loses examine his books and accounts. The holders of bills of itself among “delicate and invisible springs," and exchange, drawn or indorsed by the bankrupt, ought to “indirect but invisible consequences," and proceeds to be treated, for the purpose of voting, as secured credi contradict flatly the consequence of all its premisses and tors. A bankrupt should remain liable for his debts to state so poor and impotent a conclusion—what can we until the Court of Bankruptcy, after hearing the | do but wonder what are the subtle “springs" that creditors in open court, has given a discharge; such have the power to warp it aside from a path where (withdischarge not to be granted unless a dividend of atout much logic) common sense would seem enough to least five shillings in the pound has been declared, or keep it straight? unless it is proved to the satisfaction of the court that the bankruptcy has been occasioned by misfortune or

A POINT which arose on Wednesday, in a case of accident; and such discharge not in any case to be

Humphreys v. Brown, is worthy of notice as showing granted if the court shall find that the bankrupt has

the spirit in which the court, under the present been guilty of overtrading or reckless speculation, or of

practice, deals with technicalities. The plaintiff had conduct of a fraudulent character, or that he has not

delivered his statement of claim in the action, and each kept proper books, or has not made a complete surrender of his estate, or has not given full information relating

of the two defendants had delivered a statement of de

fence. The plaintiff then delivered an amended statethereto. The 125th and 126th sections of the Bank. ruptcy Act, 1869, as to liquidation by arrangement and

ment of claim raising a fresh case, and one of the

defendants obtained leave to amend his statement of composition, should be repealed, and all such arrangements ought to have the sanction of the Court of Bank

defence. This amended defence was duly settled by ruptcy, after full disclosure and examination of the

counsel, and pleaded matters in answer to the amended bankrupt. As in the Probate and Divorce Court, a

statement of claim; but the plaintiff by his reply, judge ought to be appointed to give his whole time to

having, as he alleged, received no amended statement of

defence, merely joined issue with the defendants “ upon bankruptcy and the hearing of all important matters,

their statements of defence." When the action came to and appeals from the registrars and county court judges ; and the Court of Bankruptcy ought to form a Division

the hearing, the plaintiff based an important part of his of the High Court of Jnstice. In country cases, appli.

case upon the contention that the statements in his cations for discharge and for allowance of arrangement,

amended statement of claim had never been denied by composition, or liquidation, at all events, and any other

the defendant in question, and must therefore be taken

to be admitted by him. The defendant, however, asserted proceedings, if required by a creditor, should be heard by

that he had delivered his amended statement of defence, the county court judge himself. Subject to the fore.

but could show no indorsement or note to prove any going resolutions, and to modification of some details, legislation in accordance with the report of the Select

delivery beyond a long-standing entry in the cost-book, Committee of the House of Commons appointed in the

charging for delivery. The plaintiff's solicitor, on the last session of Parliament is desirable."

other band, positively denied that any amended state. ment of defence had been delivered. Vice-Chancellor Hall, after the state of circumstances had been fully

explained, decided that, as it was clear there had been a THOSE WHO ARE CURIOUS' to see how little connection

mistake on the part of the solicitors upon one side or in a mind professing logical accuracy the premisses may

the other, it would be a proper course to order the action have with the conclusion, may find in the recent memo

to stand over, directing the reply to be withdrawn, the randum of Mr. Justice Watkin Williams & striking defendant to deliver his amended statement of defence illustration. The “logic” to which the learned judge within four days, and the costs of the day's hearing to appeals in the first instance is of that sort which admits

be specially reserved, with liberty to either party to file no distinction, and therefore puts all judges on the same any evidence as to the point in dispute of the delivery level as members of the same court; all are to be ordi.

or non-delivery of the pleading in question. nary judges. But though a judge is a judge, and there is to be no distinction of judges, yet, though business is business, there may be a distribution of business, THE MEMBERS of the Western Circuit may be justly since it admits of “natural divisions"; and strangely proud of the fact that their circuit has furnished two sucenough, the distribution of business brings round again cessive Lord Chief Justices of England. During the a distribution of functions, and even, it seems, a last hundred years it has also produced one Lord distinction of classes of judges; for high appellate Chancellor, Lord TRURO ; and among Lord COLERIDGE'S business," whatever that may be, is to be appro predecessors in the Common Pleas, it can boast of the priated to the “Lords Justices of Appeal.” But names of GIBBS, GIFFORD, WILDE, COCKBURN, and ERLE. perhaps Lords Justices of Appeal are, after all, | Among the law officers of the present century Sir only ordinary judges under another name-a name VICARY GIBBS, Sir ROBERT GIPFORD, Sir WILLIAM FOLLETT, which they are to assume, perhaps, whon for the Sir ALEXANDER COCKBURN, Sir Robert COLLIER, Sir moment they put on tho exercise of “high appellate”. JOHN KARSLAKE, and Sir John COLERIDGE belonged to functions. If, however, this is the real meaning of the the Western Circuit. In addition to the Lord Chief loose and confused language in which that part of the Justice the circuit is represented on the bench by memorandum is expressed in which the learned judge Sir ROBERT COLLIER, Sir MONTAGUE SMITH, Mr. Justice assente to and approves the abolition of the three LOPES and Mr. Justice BOWEN. divisions then under consideration, what are we to say to the conclusion, in which the writer lays aside his logical severity, and having, as far as in him lay, abolished the Common Pleas Division and the Exchequer

A telegram has been received at the Foreign Office from Division, proposes to retain the “great offices” of Chief

| her Majesty's Chargé d'Affairs at Copenhagen to the effect Justice and Chief Baron of the courts which he has

that the Danish Government regret that they have not the just destroyed ? “Delicate and invisible springs," it

power to agree to either of the requests made by her seems, “would be touched” by their abolition ; the

Majesty's Government-viz., for an extension beyond the

27th of November of the period for the registration of British “ quality and tone" of the bench would “suffer seriously

trade-marks; or, if the extension could not be granted, from the absence of these high judicial officers "—these that the applications for registration of British trade-marks chiefs of nothing; these captains without troops, with might be received without being accompanied by the certifinames that signify no real existence, a kind of “men in cates of titles, such certificates to be subsequently sapplied.

authority to manage in their own way certain depart. THE WIFE'S AGENCY. ments of the household expenditure, and to pledge their The case of Debenham v. Mellon has been decided by

husband's credit in respect of matters coming within those the House of Lords in accordance with general expecta.

departments. Nowin Debenham v. Mellon the husband and

wife had no establishment. They were living at an hotel, and tion, and, as we venture to think, in the only way con.

it was proved that the allowance made by the husband to sistent with principle. Excluding the cases of a wife

the wife was ample for the purpose of providing her who is living separate from her husband without any

with the articles in respect of which the claim was made. default on her part, or who has been left destitute by

Under these circumstances the House of Lords seem to her husband (which rest on different considerations) it is

have held that there was not even any prima facie imclearly settled that the authority of the wife to pledge the credit of her husband is in the capacity of agent for

plication of authority. We have not before us yet a full

report of the judgment of the Lord Chancellor, but this him. If so, it is impossible to say that an authority derived from the will of the husband can exist contrary

is the effect of his observations as they were reported in to his will, unless the husband has so conducted himself

the daily papers. He said that “the second question as to make it inequitable for him to deny, or to estop him

was whether the law implied such a mandate [i.e., a

mandate by the husband to the wife which made the from denying, her authority. When, as in the recent

wife, who could not contract herself, the agent in law case, the wife is cohabiting with the husband, who makes her a reasonable allowance for the purpose of providing

for the husband, so as to enable her to pledge his credit herself with articles of the description of those in respect

and bind him] from the mere fact of cohabitation. If of which the claim is made, and there is no proof of

it did, it was because the implication arose out of a

certain condition of facts, and on the ground that it was any act done by the husband to hold out his wife as

usual for the wife to have authority to pledge her having authority to pledge his credit, there is absolutely no reason for refusing to give effect to the husband's express

husband's credit. But in the present case nothing had

been done by the husband which would justify the assecret prohibition to his wife to pledge his credit. The

sumption that he had given any authority to his wife question of the supposed hardship to the tradesman

to pledge his credit, inasmuch as the ordinary state would not be better dealt with than it was by Lord Justice Thesiger in his judgment when Debenham v. Mellon

of circumstances was entirely wanting. . . . .

When a reasonable allowance was made by the husband was before the Court of Appeal: “ What, in the case of

to the wife, it was impossible to imply from the circuma tradesman dealing with the wife for the first time, has the husband done or omitted to do which renders it

stances that he also gave her authority to pledge his

credit." If we are right in our construction of the deinequitable for him to deny his wife's authority? For

cision of the House of Lords, the express prohibition by the tradesman it is said that the mere relationship of

| the husband to his wife in Debenham v. Mellon was im. husband and wife entities him to assume, in the absence of notice to the contrary, that the wife has authority to

material, for there never was any presumption or impli. pledge her husband's credit for necessaries. But this is

cation that she had power to pledge his credit. a fallacy. The tradesman must be taken to know the law; he knows (for the present argument proceeds upon that supposition) that the wife has no authority, in fact or in law, to pledge the husband's credit, even for necessaries, unless he gives it her, and that what the husband The decision of the Court of Appeal in the case of J, W. expressly or impliedly gives he may take away. How Thorley's Cattle Food Company v. Massam (28 W. R. then can the tradesman dealing with the wife for the first | 966, L. R. 14 Ch. D. 763, to which we briefly referred time, and without any communication with, or know in our last volume) is of very considerable imledge on the part of, the husband, say that he is induced portance to the mercantile community, establishing as it or invited, either by law or the husband, or by both com. | does the right of a trader whose trade has been injured bined, to deal with the wife upon the faith and in the by the unfounded allegations of another to obtain the belief of her being in fact authorized to pledge her hus remedy of an injunction. Before the Judicature Act band's credit ? If he be so induced or invited, it can only came into operation, the Court of Chancery had frebe upon the footing of the law making a husband absc quently refused to extend its appropriate method of pro. lutely liable for necessaries purchased by his wife to any tection to persons whose trading reputation had been person dealing with her, although for the first time, attacked, and the seal to this refusal of assistance had without notice that her authority is limited; but if the been set so lately as the year 1875, by the authority of law does so make him liable, there is no need for any Lord Cairns and Lords Justices James and Mellish, in estoppel, and we are driven back upon the exploded the well-known case of Prudential Assurance Company notion that the husband's liability is founded upon some v. Knott (23 W. R. 249, L. R. 10 Ch. 142), when those law other than that which governs in general the rela three eminent judges distinctly decided that the court tions of principal and agent."

had no jurisdiction to restrain a libel, even when * In giving effect to the husband's prohibition, the injurious to property. The contrary view had been reHouse of Lords merely affirmed the doctrine laid peatedly maintained by Vice-Chancellor Malins, who down in Jolly v. Rees (12 W. R. 473, 13 C. B. N. S. 628). was of opinion that where libellous statements tended But if the reports which have appeared of the judgment to the injury of property, the court had ample power to of the Lord Chancellor are correct, the House went a restrain the continued issue of such statements, notwithstep further than Erle, C.J., and his two colleagues. Etanding their libellous character (Springhead Spinning In Jolly v. Rees the husband and wife had an establish- | Company v. Riley, L. R. 6 Eq. 561; Diron v. Holden, ment, and many of the goods were ordered by the wife 17 W. R. 482, L. R. 7 Eq. 488; Fisher v. Apollinaris of the plaintiff's traveller at the defendant's house. The Company, 23 W. R. 460, L. R. 10 Ch. 297, and other jury, moreover, found that the allowance made by the cases). The principle on which that view was overdefendant to his wife was not sufficient. Under these ruled was that libel cases were properly questions for a circumstances the majority of the court held that there jury. The functions of a jury are now, however, not was " a presumption that a woman living with a man unfrequently discharged by the court itself, and that and represented by him to be his wife, has his authority remedy which, before the Judicature Acts, it was out of to bind him by her contract for articles suitable to that the power of the courts to award, has been awarded by station which he permits her to assume," but this pre- the Court of Appeal. sumption might be rebutted. By this so-called pre When the motion in the case to which we referred at sumption the court appears to have meant that under the commencement of this article came before Vicesuch circumstances authority is implied from the fact that Chancellor Malins, his lordship did not think fit to wives cobabiting with their husbands ordinarily have award an injunction, hesitating to act contrary to


Prudential Assurance Company V. Knott, though he necessarily have the effect of perpetrating or assisting in did express an opinion that the difficulty felt by the the perpetration of a fraud, is accustomed to restrain the judges in confirming the view taken by him in that case use of it, although no positive evidence has been given had been removed by the Judicature Acts (see L. R. 6 of injury resulting from its use,” Ch. D. 582). But when the action came on for hearing, From these two cases several propositions may be dethe Vice-Chancellor thought himself entitled to act onduced. The first is that where a statement of a public: the view which he had consistently maintained, and he nature is put forth, whether in the shape of a circular, accordingly granted an injunction. The whole matter is advertisement, or otherwise, which will naturaily tend to clearly stated in the compass of a few lines in the judg- do injury to a trader in his business, by insinuating disment, which we may be excused for reproducing. trust in the bona fides of his trade or the genuineness of “When one man," says the Vice-Chancellor, "publishes his manufactures, this injury can be at once arrested by that which is injurious to another in his trade or the issue of an injunction restraining the continued business, that publication is actionable, and, being | utterance of such misrepresentations. In the next place, actionable, will be stayed by injunction, because it is a the fact that that this statement is one which might wrong which ought not to be repeated.” This view met properly be submitted to the consideration of a jury in with the approval of the Lords Justices, about the an action for libel is no bar to the proceeding for an in. ground of whose decision there can be no ambiguity, for junction. And, in the third place, the fact that the they expressly based their judgment on the ground that case is one of merely apprehended damage is immaterial. a libel had been put forth by the defendants.

To wait till the damage was inflicted, at all events in The facts of the case were simple. A brother of i part, would be to render preventive justice unequal to Joseph Thorley, the inventor of Thorley's Cattle Food, its task, and if the court sees clearly that a preventive was equally possessed of the secret with his brother, and, remedy is really needed, it need not defer the application: after the brother's death, he formed a company which of that remedy till the injury has been inflicted, when, manufactured cattle food substantially according to the in fact, it would come too late to effectively exert its old recipe. The executors and successors in business protective influence. (who, according to the decision of the Court of Appeal in As injunctions of this description have been so recently Massam v. J. W. Thorley's Cattle Food Company, 28 | introduced, it may not be out of place to notice here that W. R. 966, L. R. 14 Ch. D. 748, also succeeded to the injunction granted in J. W. Thorley's Cattle Food Joseph Thorley's exclusive right in the name of the Company V. Massam was to restrain the defendants article) thereupon issued statements to the effect that the “from advertising, or representing, or suggesting, in their company's article was a spurious imitation of the advertisements or circulars that they were alone pos. genuine article. The court held that, the articles manu sessed of the secret mentioned in the pleadings, and from factured by the parties being substantially identical, the representing, or suggesting, or doing anything calculated representations put forth by the defendants were untrue; to represent or suggest, that the cattle food manufactured that those untrue representations were libellous and and sold by the plaintiff company was spurious or not calculated to injure the company in their business; that, genuine." this being so, it was not necessary for the company to Now that it is established that such statements can be prove actual damage, and that they were entitled to their restrained by injunction, we may fairly anticipate that remedy.

further applications of the principle will before long be Singularly enough, within a very few days, the very

called for. same question came up again for decision by Mr. Justice Fry in Thomas v. Williams (28 W. R. 983, L. R. 14 Ch. D. 864), where the plaintiff was a manufacturer of

REVIEWS. needles, which he sold and exported to Australia and other places in large quantities, as the needles of “S.

RIGHTS OF COMMON. Thomas & Sons” (the name of his firm), and of “Holyoake” or “ George Holyoake" (the name of another

RIGHTS OF COMMON AND OTHER PRESCRIPTIVE Rights: manufacturer, to whose business he had succeeded by

Being TWENTY-FOUR LECTURES DELIVERED IN GRAY's purchase). The defendants, who were exporters of small

Inn HALL IN THE YEAR 1877. By JoshuA WILLIAMS, wares, then arranged with a firm of needle manufacturers,

Esq., Q.C., Professor of the Law of Real and Personal named J. Thomas & Sons, and with another manufacturer,

Property to the Council of Legal Education. H. named Edmund Holyoake, for a supply of their needles

Sweet. for exportation, and issued in the Australian market a The utility of lectures such as these, in so far as regards circular stating that they had made arrangements the oral delivery of them, is to us by no means obvious. with “the original firm of Thomas and the original Their value when offered in the form of a written treatise and only manufacturers of the name of Holyoake," and upon the subject to which they refer is, on the other alluding to the existence in the trade of spurious makers hand, beyond possibility of question. We do not know of needles. These cautions could, it was clear, only be how far the generally entertained respect for the learning directed against the plaintiff, whose needles they bad of Mr. Williams may have expressed itself by a large the effect of stigmatizing as spurious and unfair imita attendance in Gray's-inn Hall when the lectures were tions, and an injunction was accordingly, on the authority delivered. He is undoubtedly looked upon by the preof J. W. Thorley's Cattle Food Company v. Massam, sent generation of lawyers as the Gamaliel of real propgranted to restrain the defendants from issuing or per erty law. But even Gamaliel might have found a diffimitting the issue of the libellous circular, and from in culty in gathering his disciples to his feet, if he could any manner representing or suggesting that the goods have apoken to them through the medium of a beautifully made and sold by the plaintiff were imitations of the printed octavo, such as this, as easily as by oral disgoods made and sold by J. Thomas & Sons or Edmund course. The lecture may be a highly successful means Holyoake. “If,” said the learned judge," the issue of of imparting knowledge; but it is successful only under such a circular cannot be restrained without proof of conditions. It is admirable, of course, when the subject actual injury, it is obvious that preventive justice falls is one enabling the teacher to explain his meaning by short of what it ought to accomplish in such a case as physical illustration or experiment. It may be adthis; because, to require evidence of injury in a case mirable, whatever the subject, when the mind of the where the prospective injury is visible, and not to inter. lecturer is ardent to impress his audience with the fere until it has, to some extent, effected its injurious interest and possibilities of it as a science, to discover purpose, would be clearly a defect in the jurisdiction. general principles, to present them with variety and And we are all acquainted with cases of trade-marks vigour of expression, and to enforce them with such where the court, seeing that a mark is designed and will clearness and fullness of illustration that they may become. indelibly fixed upon the mind. But the book rather vill and those enjoyed by another; but the limits of the than the lecture is the proper medium of expression vills or manors had become defined for the purpose of when the object is merely an exhaustive statement of jurisdiction, and each vill had its own marking officer the results of accumulated learning. And a book is by and its own mark for distinguishing its cattle from those no means improved by being cast in the form of a series belonging to the vill adjoining. The imposition upon of discourses. It necessarily loses in conciseness of the district of the Forest system, with its absolute prostatement; and how much it loses in clearness of hibition of inclosure, had petrified the primitive condiarrangement may be seen from the fact that each of tion of enjoyment, so that the original practice of the these lectures is printed without any attempt to define vills in letting their cattle depasture anywhere upon the its subject-matter by means of a heading.

surrounding wastes had acquired all the character of a As to the substance of the book, however, we have right. only to congratulate our readers upon the publication of Mr. Williams, after pointing out the importance which so valuable an aid to the understanding of a difficult was once attached by our law to the vill or town as the subject. To the practising lawyer it is valuable, from unit of social organization of greater antiquity than the the fact that the professional position of the writer, and parish, adduces the most striking evidence to show that his experience in modern litigation with reference to the common of pasture, as appendant to arable land, was rights treated of, enable him to speak with an authority originally an incident of the vill system. To cite a. which no other writer could claim; and the reader will single instance, he says: “If we go back to the time of find here an outline, not merely authoritative, but inte. | Bracton, who wrote in the reign of Henry III., we shall resting and readable, of the law on commons, franchises, find that the form of writ, which he gives as proper to be and easements. To the student of early English insti used by a person who has been disseised of his right of tutions it will be equally valuable, from the support common, does not refer to the land in respect of which which Mr. Williams's acquaintance with the year-books the right of common is claimed, as being held of any and old text-writers enables him to give to the modern manor, nor does it refer to the land over which the right theory concerning the methods of ancient agriculture of common is claimed as waste land of any manor. On and property in land ; and it is, in our opinion, in this the contrary, the writ is as fo!lows:- The King to the latter aspect that the book is specially noteworthy. sheriff, greeting: A. complains to us that B. unjustly and Those persons who are unable to conceive of any

without judgment disseised him of his common of pas. reasonable appropriation of the soil of a country other

ture in such a vill, which belongs to his free tenement in than its division into vast estates, each belonging to one

the same vill, or in another vill. And the form of writ person absolutely (except in so far as the law, in its for the same purpose given in the second volume of passion for “limited ownership,” has put it into the

Fitzherbert's · Natura Brevium' is to the same effect : power of some other person, dead or unborn, to prevent

• The King to the sheriff, &c.: A. hath complained unto the owner from dealing with it as he pleases), may be

us that B. unjustly, &c., hath disseised him of his startled to find that their ancestors were, in this parti

common of pasture in N., which belonged to his freecalar, communists. Yet such appears to be the fact.

hold in the same town, or in another town,' Again, in The large and lucid generalizations of Sir Henry Maine,

describing the old writ of admeasurement of pasture, in his work on Village Communities, show that pro.

which lay betwixt commoners who had common prietorship by the village community was probably the

appendant to their freeholds, Bracton gives this form :original form of landed property in England, in India, and

"The King to the sheriff, greeting : Such a one comin other countries inhabited by Aryan peoples; and now

plains to us that such a one unjustly surcharged his Mr. Williams proceeds to confirm these conclusions by re.

common of pasture in such a vill, so that he has in it ference to the records of English law, and to the frequent

| more cattle and sheep than he ought to have, and than existence, until late years, of the “common field " sys

belonged to him to have; and therefore we command tem, which was plainly a survival of the communistic you that justly and without delay you cause that practice. He shows us that at least one such commu- pasture to be measured, so that the said such a one shall nity was in the active exercise of its original rights and

not have in it more cattle and sheep than he ought customs as lately as the year 1854. The essential feature to have, and than belonged to him according to his free of the village community, described in our law as the tenement, which he has in such a vill; and that the said pill, town, or township, was ownership of the land such a one have in that pasture so many cattle and sheep by the vill and its enjoyment by the members according as he ought to have, and as belonged to him to have, and to general regulations framed by all for the benefit of no more.'' all. These regulations related not only to the land But, although the existence of the vill system appears reduced to order and cultivation, but also to those sur-clear enough, the mode by which the vill became trans. rounding woods and wastes which separated the plough-| formed into the manor is less evident. The occasional land and meadow belonging to one vill from those reference in some of the old books to the “ lord of the belonging to another, and which constituted the mark vill," instead of to the lord of the manor, suggests that according to the most distinctive use of that word. The | the transition began by the creation of a seignory boundary line as between the waste used by neighbour- or jurisdiction over the vill, and that this seignory so ing vills would naturally in the first place be undefined ; far developed during the exigencies of the feudal and wherever the waste remained open it did, in fact, con. period as to attract to itself all rights of property not tinue undefined for the purpose of enjoyment, although, palpably appropriated, and especially the ownership of doubtless, at an early period it became bounded for cer. the waste. In some cases, indeed, the transition never tain purposes of jurisdiction. That it should become so took place, as witness the continuance of the “common bounded was a necessary result of the right possessed by field” system already reforred to. That system has each vill to control all the freemen belonging to it in the been expressly noticed in recent times by the Legis. exercise of their rights of pasture upon the waste. If lature, the statute 13 Geo. 3, c. 81, having been passed we assume for a moment that the vill, with its assembly for its better regulation. The system is yet scarcely exof freemen, was the original of the English manor, with | tinct, and is thus described by Mr. Williams : its court baron of freeholders, and refer to the position “A common field is a very different thing from what of Epping Forest (as it appeared in the recent litigation is ordinarily called a common. What are ordinarily respecting it), we may see this communal system, in so called common or waste grounds are open pasture lands, far as relates to the right of pasture, in actual operation, on which the tenants of a manor or other persons have a and we see also the nature of the interest possessed by ad right to put their cattle to feed. But a common field is joining vills in the vast extent of country which had re- a field belonging to numerous owners, whose lands, as tained its original character of open waste. There was no far as I know, invariably assume a remarkable shapedividing line between the waste lands enjoyed by one | viz., that of very narrow strips, sometimes not more than

« PreviousContinue »