The Legal Observer. SATURDAY, DECEMBER 26, 1835. No. 1. "Quod magis ad NOS Pertinet, et nescire malum est, agitamus. HORAT. NOTES ON LAW AND LAWYERS. ought to have been of a profession. Johnson, Sir, it would have been better that I had been of a profession; I ought to have been a lawyer." Boswell, “I do not think, Sir, it would have been better, for we should not have had the English dictionary." Johnson, But you would have had Reports." Boswell, "Ay, but there would not have been another who could have written the Dictionary. I believe causes have been as judiciously decided as you could have done." Johnson, "Yes, Sir, property has been as well We have always aimed at making our work a kind of legal storehouse, a place in which might be found all matters connected with our profession; and with this view we have not only endeavoured to record all passing events, but to bring together whatever might serve or interest our readers, with reference as well to the past as to present times. We shall not think therefore that we misemploy either our own or our read-settled." "Johnson, however," says his bioers' time, if we occasionally extract from sources not strictly professional, such parts as may either amuse an idle hour or relieve a busy one; and if we sometimes refer with this object to works very familiar in name to all, we do so because we well know how many of our friends, having withal the true relish for literature, suffer the miscellaneous portions of their libraries to remain untouched, and devote themselves—perhaps rightly, to law and the newspapers. Be it our humble duty, therefore, sometimes to remind them of what they have forgotten, and to bring together the fragments interesting to the lawyer, scattered through so many different volumes not bound in law calf, or to be found in the law catalogues. With this very laudable desire, we shall take up the first book that meets our eye, Boswell's Life of Johnson, which can never, we think, get out of fashion, even if its new editions were not so attractive. We shall run the risk of hashing up for our readers that on which they have already dined, and shall collect the dicta on law and lawyers, which we find in these books. We have some pleasure in thinking how highly our profession was regarded by Dr. Johnson. He constantly treated it with respect; some of his most intimate friends belonged to it, and his own regret at not having made it his, seems to have been severe. Boswell observed to him, that he VOL. XI.-No. 308. grapher, "had a noble ambition floating in 66 We have good reason to suppose, that had he applied to the law, he would have been successful. Gifted by nature with an admirable memory, and great eloquence; capable of vast mental efforts and untiring application; and having the power of embracing the largest views, and of understanding the minutest details, these qualities, with his shrewd knowledge of mankind, would probably have distinguished him eminently as a lawyer. The fact was, however, that he knew less of law than of any other science. K We may in some future number devote a | and mine, [Mr. Wedderburn, as suggested paper to the examination of his definitions by Mr. Croker], who had risen to eminence of legal words and phrases, most of which in the law, had, when first making his way, are incorrect; and his opinions on legal solicited him to get him employed in city subjects, on which Boswell consulted him, causes. Johnson, "Sir, it is wrong to stir are of very slight technical merit. His sen- up lawsuits, but when once it is certain timents, however, on all other matters con- that a lawsuit is to go on, there is nothing nected with the profession, are well worthy in a lawyer's endeavouring that he shall of attention; these we shall take as they have the benefit rather than another." Boscome most readily to hand : well," You would not solicit employment, Sir, if a lawyer." Johnson, “No, Sir, but not because I should think it wrong, but because I should disdain it. However, I would not have a lawyer to be wanting to himself in using fair means. I would have him to inject a little hint now and then, to prevent his being overlooked." Vol. 6, p. 57. "I told him," says Boswell," that I was retained as counsel at the bar of the house of Commons, to oppose a road-bill in the county of Stirling, and asked him what mode he would advise me to follow in addressing such an audience. Johnson, Why, Sir, you must provide yourself with a good deal of extraneous matter, which you are to produce occasionally, so as to fill up the time, for you must consider that they do not listen much. If you begin with the strength of your cause, it may be lost before they begin to listen; when you catch a moment, press the merits of the question upon them." Mr. Wilkes's advice as to the best mode of speaking at the bar of the House of Commons, was not more respectful towards the senate, than that of Dr. Johnson. "Be as impudent as you can, as merry as you can, and say whatever comes uppermost. Jack Lee is the best heard there of any counsel, and he is the most impudent dog, and always abusing us," vol. 7, p. 51. Mr. Lee was Solicitor General in the Rockingham administration, and never hesitated to express in the coarsest language whatever he thought," Wraxall's Mem. vol. 2, p. 237. We turn to another volume: "I mentioned law," says Boswell, as a subject on which no man could write well without practice. Johnson, Why, Sir, in England, where so much money is to be got by the practice of the law, most of our writers upon it have been in practice, though Blackstone had not been much in practice when he published his Commentaries.' But upon the continent, the great writers on law have not all been in practice. Grotius, indeed, was; but Puffendorf was not: Burlamaqui was not.' When we had talked of the great consequence which a man acquired by being employed in his profession, I suggested a doubt of the justice of the general opinion, that it is improper in a lawyer to solicit employment; for why, I urged, should it not be equally allowable to solicit that as the means of consequence, as it is to solicit votes to be elected a member of parliament? Mr. Strahan had told me, that a countryman of his We shall close these extracts with Dr. Johnson's sentiments on the chances of professional success in London. "As I meditated," says Boswell, "trying my fortune in Westminster Hall, our conversation turned upon the profession of the law in England." Johnson, "You must not indulge too sanguine hopes should you be called to our bar. I was told by a very sensible lawyer, that there are a great many chances against any man's success in the profession of the law; the candidates are so numerous, and those who get large practice so few. He said it was by no means true, that a man of good parts and application is sure of having business; though he indeed allowed, that if such a man could but appear in a few causes, his merit would be known, and he would get forward; but that the great risk was, that a man might pass half a lifetime in the court, and never have an opportunity of showing his abilities,” vol. 6, p. 323. This, we think, is true enough, as applied to the present day. The following, on the same subject, we recommend to the attention of our younger readers. "During our visit to Oxford, the following conversation passed between him and me, on the subject of my trying my fortune at the English bar. Having asked whether a very extensive acquaintance in London, which was very valuable and of great advantage to a man at large, might not be prejudicial to a lawyer, by preventing him from giving sufficient attention to his business." Johnson, "Sir, you will attend to business as business lays hold of you. When not actually employed, you may see your friends as much as you do now. You may dine at a club every day, and sup with one of the members every night; and you may be as much at public places, as one who has seen Practical Points of General Interest.-Review: Lord Brougham's Decisions. 123 common may have an assize for the moiety of 20s., and the moiety of a pound of pepper. But for the hawk or horse, albeit they be tenants in common, they shall join in an assize, for otherwise they should be without remedy; for one of them cannot make his plaint in assize of the moiety of a hawk or of a horse, for the law will never suffer any man to demand any thing against the order of reason or nature, as before it appeareth by Littleton, s. 129. Lex enim spectat naturæ ordinem. Also the law will never enforce a man to demand that which he cannot recover, and a man cannot recover the moiety of a hawk, horse, or any other entire thing. Lex neminem cogit ad vana seu inutilia. them all would wish to be. But you must take care to attend constantly in Westminster Hall; both to mind your business, as it is almost all learnt there (for nobody reads now), and to show that you want to have business. And you must not be too often seen at public places, that competitors may not have it to say, 'He is always at the play-house or at Ranelagh, and never to be found at his chambers.' And, Sir, there must be a kind of solemnity in the manner of a professional 'man." Boswell thinks this too indulgent to the aspirant; and it certainly is so, if applied to a student. But Johnson directed it only to Boswell, who was leaving the Scotch bar, where he had attained some success, for the English. His biographer, however, contrasts it with what Chief Justice Hale related that he had done; "that for two years after he came to the inn of court, he studied sixteen hours a day: however, his lordship added, that by this intense application, he almost brought himself to his grave, though he was of a very strong constitution, and after reduced him self to eight hours; but that he would not advise any body to do so much that he thought six hours a day, with attention and constancy, was sufficient; that a man might use his body as he would his horse and his stomach, not tire him at once, but rise with an appetite," vol. 8, We shall probably return to these vol-interest in fifteen or twenty-five horses inumes, for the characters of some of the stead of one; could it be contended, that eminent lawyers of the end of the last cen- such a sale would not be a transfer of the tury. vendor's interest in chattel property? and the same principle must be applied to the transfer of a single horse, Marson v. Short, p. In the case to which we allude, these authorities were cited by Mr. Serjeant Stephen, to prove that an agreement for the sale of the moiety of a horse could not be carried into effect, and was therefore invalid. Lord Chief Justice Tindal, however, overruled this objection-observing, that a party might as well sell the moiety of a horse, as of any other chattel that he does not divide, such as a portion of oil in a cask, or the like; and Mr. Justice Gaselee said, "as to the argument, that there can be no sale of a part interest in an undivided chattel, because there can be no delivery of the thing sold,— suppose this had been a sale of an undivided PRACTICAL POINTS OF GENERAL 2 Bing. 118. N. S. It seems clear, there INTEREST. ON THE SALE OF AN UNDIVIDED MOIETY OF A HORSE. fore, that an agreement for the sale of an undivided moiety of a horse, is valid. NOTICES OF NEW BOOKS. Select Cases decided by Lord Brougham in the Court of Chancery, in the Years 1823 and 1834. Edited from his Lordship's original manuscripts. By C. P. Cooper, Esq., Barrister at Law. Vol. 1. Sweet. A QUESTION has lately arisen, as to whether the undivided moiety of a horse can be sold Lyttleton as to this has said, "if there be two tenants in common of certain lands in fee, and they give this land to a man in tail, or let it to one for term of life, rendering to them yearly a certain rent and a pound of pepper, and a hawk or a horse; and they be seised of this service, and afterwards the THE greatest part of the cases comprised in whole rent is behind, and they distrain for this selection, has been already edited by this, and the tenant maketh rescous; in Messrs. Mylne and Keen. The present this case, as to the rent and pound of pep-editor has, however, undertaken this Work, per, they shall have two assizes, and as to in consequence of a "promise to a distinthe hawk or the horse but one assize." guished jurist and statesman of another Litt. s. 314. Upon which Lord Coke ob-country (M. Dupin, the clder, we preserves, "as twenty shillings or a pound of sume); "who was desirous of possessing in a pepper may be several; the one tenant in separate work authentic copies of all such judgments of Lord Brougham, while presiding in the Court of Chancery, or had previously to the delivery been put in writing." The first volume of the Work is here given, and the second is promised, with notes by the editor. The cases not already reported will be given by us in the next part of our Quarterly Digest of Cases. CHANGES MADE IN THE LAW LETTERS PATENT. 5 & 6 W. 4, c. 83. touching Letters Patent for Inventions." The substance of its provisions is as follows: Disclaiming or altering part of the Specification.-The possessor of a patent may, with leave of the Attorney or Solicitor General, enter a disclaimer of any part of his title or specification, or a memorandum of any alteration therein, not extending the exclusive right granted by the patent: any person may enter a caveat against the same, which shall entitle him to notice of the application being heard. The disclaimer or alteration not to affect any suit (except on scire facias) pending at the time when made. The crown officer may direct advertisements of the application (s. 1). BEFORE stating the substance of the new act Where the Patentee is not the real Init may be useful to quote the purport of the ventor, though believing himself to be such. previous act of 21 James 1, c. 3, by which-If it shall be found, that before the all monopolies were abolished, saving letters patent to use new manufactures. The principal saving clauses, as applicable to inventions, are the 5th and 6th of that statute. The 5th relates to patents there tofore, and the 6th to patents thereafter granted. The words of the latter are as follow : "Letters patent and grants of privilege for the term of fourteen years or under, of the sole working or making of any manner of new manufactures within this realm, to the true and first inventor and inventors of such manufactures, which others at the time of making such letters patent and grants shall not use, so as also they be not contrary to the law, nor mischievous to the state, by raising prices of commodities at home, or hurt of trade, or generally inconvenient the said fourteen years to be accompted from the date of the first letters patent or grant of such privilege hereafter to be made." : The objects of the new statute are to increase the protection afforded to patentees in the rights intended to be secured to them by letters patent, and to insure the benefit which the public will derive from their inventions. The inconveniences intended to be remedied, consisted principally in the necessity of keeping the invention secret until the patent should be sealed, and the difficulty of framing the specification correctly within the time required;-at the same time so laying open the discovery as to put the public, at the expiration of the term, in full possession of the improvement. The act passed on the 10th September, and is intituled "An Act to amend the Law granting of a patent, some other person had, unknown to the patentee, invented or used the same subject, the latter may petition the King in Council to confirm the patent, or grant a new one; and if the Judicial Committee of the Privy Council is satisfied that the patentee believed himself to be the first inventor, and that the invention has not been publicly and generally used before the date of the patent, the petition may be granted; and in that case the sole right to use the invention, against all persons whomsoever, will be in the holder of the patent. All persons opposing the petition shall be heard; and all parties to former suits respecting the patent shall be entitled to have notice of the petition (s. 2). Prolongation of Patent.-If any patentee shall advertise three times in the London Gazette, and three times in three London papers, and three times in some country paper, published nearest to his manufactory, or to his residence if he has no manufactory, that he intends to apply for a prolongation of his term, and shall petition the King in Council to that effect, any person may enter a caveat against it; the King may refer the petition to the Judicial Committee; notice shall be given to the persons entering caveats, and all persons shall be heard by their counsel and witnesses. Upon the favorable report of the Committee the King may extend the term for not more than seven years. No extension shall be granted, unless the application be made and prosecuted with effect within the original term (s. 4). The prolongation, which may now be granted by the Judicial Committee of the Privy Council, could only be obtained, before the present act, by application to Par Changes in the Law.-Hungarian Constitution und Law. liament. For the Rules of the Judicial Committee, see Commentaries on the New Statutes, p. 78. Notice of Objections. The parties to suits shall give notice to each other of all objections meant to be relied on at the trial (s. 5). 125 disposing of lands which have fallen into the royal exchequer, provided their extent does not exceed thirty-two manors. He is the mediator between the king and the states, where any difference arises. He presides at the board of the council of seven, the supreme court of the kingdom; and names a vice palatine, who presides at the tribunal of the royal table, as grand judge. He is supreme judge of the cumanes and jaziges. He is also judge on appeal in all differences arising between the counties, with respect to their limits. The palatine is also governor of the three united counties of Pesth, Pilis, and Solth. The archives of the king Treble costs allowed on second suit.-In a second suit respecting a patent, in case the patentee shall have prevailed in the first suit, he shall have three times the amount of his costs, unless the judge shall certify that he ought not to have them (s. 3). It may be useful to point out to the practitioner, that the words "to be taxed at three times the taxed costs," are evidently in-dom are under his care, and he is always tended to go beyond the ordinary allowance generalissimo of the Hungarian troops. of treble costs, which are calculated; first, Next to the palatine, the grand judge has as the ordinary costs; secondly, as half the the greatest authority. costs; and thirdly, as half the latter. The third baron, or grand dignitary of Mode of allowing Costs.-In taxing the the kingdom, is the Ban of Croatia and costs of actions for infringements, they shall Sclavonia. His functions consist in con, be apportioned with reference to the partial voking, with the permission of the kingsuccess of either party, without regard to certain assemblies, at which the particular the general result of the trial (s. 6). interests of Croatia and Sclavonia are treatPenalties. Any person, without the con-ed; for those two kingdoms depend on the sent of the patentee, putting the patentee's general diet of Hungary. mark upon a patented article, or upon such The grand treasurer, is the fourth in digarticle not purchased under the patentee, nity. He is a member of the council of putting the words "patent," "letters patent,' seven, and also chief of another tribunal, "by the king's patent," or any such words, called sedes tavernicalis, which decides on or counterfeiting the device of the patentee, appeal on the decrees pronounced on those shall forfeit 507.; but this is not to prevent subjects in the free cities under its jurisany person putting the word "patent" on diction. any article, the patent for which shall have expired (s. 7). Actions for penalties must be brought within one year by an informer, and by the crown within three years, 31 Eliz. c 5. The act is given verbatim in the "Commentaries on the New Statutes," p. 76. The offices of the other baron of the kingdom, are now only honorary titles. The high nobility, or order of magnates, is composed in Hungary of the counts and barons (liberi barones), who must not be confounded with the barons of the kingdom (barones regni); but except the latter, and the comites liberi perpetui majores, the counts and barons are of modern date in Hungary. They were entirely unknown HUNGARIAN CONSTITUTION AND before the Austrian dominion. At present LAW. [Continued from p. 114.] We will now speak of the peculiar rights which some members of the Nobility enjoy, and then we shall point out the rights of the Nobility in general. After the king, the dignity of palatine is the most important. The palatine presides over the diet in general, and the table of the magnates in particular, and he is the person who crowns the king. He is the lieutenant of the king during his absence, and presides in that character over the council of government. He has the right of there are in Hungary ninety-five families of counts, seventy-nine of barons, and two hundred and ninety-seven of noble foreigners, who have obtained letters of naturalization. The king may, at his will, confer the rank of magnate on any Hungarian gentleman. The most considerable prerogative enjoyed by the magnates, is that of taking their place at the table of the order, and voting there. In other matters, all the nobles are equal in the estimation of the law, without distinction of rank or dignity. The principal rights and liberties of every noble in general, are these: First, every |