L Superior Courts: Exchequer.-Notes of the Week. Exchequer of Pleas. OF MAKING COGNOVIT.-DECLARATION DEFENDANT'S ATTORNEY IN WRITING, UNDER THE RULE H. T. 2 W. 4, c. 72. The declaration required by the Rule of Court, of an attorney, that he is the attorney of the defendant, in making a cognovit, need not be given in writing on the cognovit. This was a motion to set aside judgment and execution thereon, on the ground of irregularity, no attorney expressly appointed by the defendant being present at the time the cognovit, on which judgment was signed, was given, to advise him as to its nature and effects. It appeared that an attorney had called on the defendant, and had induced him to quit his house, when he was arrested. He was conveyed to a house near to the residence of his attorney; but on his sending for the latter, he was not at home, but his clerk attended, and was prepared to put in bail. The othcer, however, suggested that a cognovit might be given, and this having been agreed to, he pointed out the attorney who had been instrumental in obtaining the defendant's arrest, as a person who would act for him on the occasion, and make the cognovit. The defendant consented, and the cognovit was accordingly drawn, and signed by the defendant, and by another person as the attesting witness, and as the attorney of the defendant. There was also another objection, which was, that the attorney in his attestation did not declare that he was the attorney for the defendant, although he subscribed himself as such. The Court said, that the latter objection could not prevail: sufficient had been done, as a verbal declaration was enough. A rule nisi, however, might issue on the first point. Rule accordingly, but it was subsequently abandoned. Robinson v. Brooksbank, H. T. 1836. Excheq. PERIOD WHEN AFFIDAVIT OF DEBT MAY BE CONSIDERED STALE.-ISSUE OF CAPIAS ON AFFIDAVIT.-SUBSEQUENT ISSUE OF PROCESS ON THE SAME AFFIDAVIT INTO A DIFFERENT COUNTY.-SAME OFFICER ACTING FOR BOTH COUNTIES. An affidavit of debt is not stule until it is a year old. When the same officer acts for two counties, process may be issued into both counties on the same affidavit, if the first writ issued is not acted upon. A rule had been obtained for setting aside a writ of alias capias, with costs, for irregularity, and that the defendant might be discharged out of custody. Cause was now shewn, and it appeared that the original affidavit of debt was filed on the 9th of April, 1835, and a capias issued into Surrey. No arrest was made, however; and, on the 10th of May, another capias was issued 407 into Middlesex, referring to the previous affidavit and capias. No arrest still took place; and on the 5th of November an alias capias was issued into Surrey, with an indorsement that the original affidavit of debt was filed on the 9th of April, 1835; and on this the defendant was arrested. This arrest, it was submitted, was quite regular. In a case alluded to, it was held by the Court, that if a writ of capias were issued into one county on an affidavit of debt, and no proceeding taken thereon, another original writ might be issued into another county, on the same affidavit ; and in another case, an affidavit was sworn before a deputy filazer for Sussex, but the defendant not being found there, after a month the plaintiff caused an alias cupias to be issued into Cornwall, by the same deputy filazer, and an arrest on the latter was held good, although no new affidavit, or an office copy of the old one, had been filed on issuing the alias. In the present case, the officer acted for both counties. In support of the rule, it was observed, that the first case cited had occurred before the New Rules, and the second did not apply, as it was an original writ which was issued here. The Rule of Court, which pointed out the forms of alias and pluries writs, evidently contemplated that the second and subsequent writs should be issued as alias and pluries writs, as they were directed to refer to the preceding writ or writs. In this case, a writ was issued on the 5th of November, on a stale affidavit made on the 9th of April. The Court said, that an affidavit was not considered stale until it was a year old. It was evident, from the first case cited, that a plaintiff might abandon the first writ, upon which nothing was done, and issue a fresh writ into another county on the same affidavit, if made within a year, and before the officer who acted for both counties. The rule must, therefore, be discharged. Rule discharged.-Ramsden v. Maugham, H. T. 1836. Excheq. NOTES OF THE WEEK. Royal Assents. 18th March, 1836. Slaves Compensation. LAW BILLS IN PARLIAMENT. Hause of Lords. Law of Wills. Law of Executors. Transfer of Property. 408 Notes of the Week.-Answers to Queries.—Queries. In Committee. Ecclesiastical Courts Consolidation. Ecclesiastical Leases Regulation. Third Reading, West India Courts of Justice. Bills to be brought in. Court of Chancery. House of Commons. Durham Courts. In Committee. Election Expenses. Third Reading. Prisoners' Counsel. Passed. Municipal Corporations Amendment. Bills to be brought in. Bribery Acts Consolidation. Registration of Aliens. Offences against the Person. Prosecutions for Conspiracy. ANSWERS TO QUERIES. Law of Attorneys. ASSIGNMENT OF ARTICLES.-REGISTRY. I think that the Indemnity Act will cover the omission of not registering the assignment of articles; for it indemnifies all who have "paid their proper stamp duties, either before or within six months after the execution of the contracts in writing entered into by them to serve as clerks to attorneys, &c. &c. These words, I submit, include all contracts, &c. which bear the duty of a stamp. Such then is the contract for the assignment of articles. Vide 55 G. 3, c. 184, sched. part 1. In addition, a case has lately come under my own cognizance, where a clerk omitted to register the assignment of his articles, but having waited for the Indemnity Act, entered as an attorney last term, and is now practising. PERSIUS. Law of Property and Conveyancing. COPYHOLD SURRENDER. TRUSTEES. A. M. devises his copyhold estates to B. and C., in trust for sale. Can they, being trustees only, surrender, either in or out of Court, Costs and Actions of Private Com- by attorney, or must they surrender in per panies. Consolidation of Stamp Acts. son? ECCLESIASTICAL COURTS BILL. LORD OF MANOR. Is there any impropriety in the lord of the manor being present at a manorial court held by his steward? and does it in any manner invalidate the surrenders taken at the court? INHERITANCE. We understand that this bill will not be proceeded with until after the Easter recess; and in the mean time we shall probably be able to put our readers in pos- A son purchases land, and dies seised, session of all the objections to the details leaving a father living, a sister of the whole of the bill. We still think that the prin-blood, and a brother of the half blood. The ciple of consolidation is a useful one, and father enters, and becomes seised as heir to his hope that this main feature of the plan will son, under the 3 & 4 W. 4, c. 106. Upon his death, who is entitled,-the sister of the whole, or brother of the half blood? be carried into effect. QUERIST. The Legal Observer. SUPPLEMENT FOR MARCH, 1836. "Quod magis ad NOS Pertinet, et nescire malum est, agitamus." HORAT. LECTURES AT THE INCORPORATED | gality under a statute, require somewhat [We are glad of an opportunity of continuing the publication of the substance of the late Mr. Dodd's Lectures, delivered at the Incorporated Law Society. The MSS. with which we have been favored, are, however, in an incomplete state, and not arranged in the order in which the Lectures were delivered. Some parts of them which appear to be imperfect, were supplied either from notes, or extemporaneously, in the course of their delivery. We regret, there. fore, that justice cannot be done to the learned author. Knowing, however, that they excited considerable interest, and that a report of them is much desired, we shall endeavour to make the most of our materials; but, as the necessity of occupying the stated hour of lecture, and no more, some times occasioned an abrupt termination of one subject, or the imperfect commencement of another, we shall not confine ourselves to the Lecture of any particular evening, but select such portions as may give a complete view of all the important doctrines comprised in the Course of Lectures. For the present, then, the following is submitted to our readers.] OF CONTRACTS VOID FOR IMMORALITY, OR AS CONTRARY TO PUBLIC POLICY. There are a large class of contracts which are invalid on other grounds than those of contravention of any statute; grounds which, being of a more indefinite and less precise nature than that of illeVOL. XI.-No. 324. more notice. No agreement which is in itself grossly immoral, or which is founded on a consideration of an immoral description, can either be the subject of an action at law, or of a bill for specific performance in equity. Both these propositions are strikingly instanced in the cases of immoral, obscene, or irreligious publications. No party who in any way contributes, whether by his head or his hands, whether intellectually or mechanically, to the production or issuing of these publications, can recover, in a court of law or equity, the price of his illegal work and labour. If a bookseller sells them, he cannot recover the value from the vendee. The printer, who prints them, cannot recover for his work and labour from the publisher. The author who composes them may be defeated in an action for the price of his literary exertions, by the bookseller who has actually printed and sold the book, shewing that it is so immoral and scandalous, that the express or implied contract to pay the author, is void. If the work is pirated, the Court of Chancery will not protect it by injunction; tion on the ground of invasion of property, since that Court only proceeds by injuncand there can be no property in that which is illegal. If the plaintiff sues in an action on the case at law for the piracy, he is met and baffled by the same objection. In a case a few years ago, a printer sought to recover from the notorious publisher, Stockdale, the price of printing Harriette Wilson's Memoirs. Serjeant Wilde objected, that the book was obscene and scandalous; and Lord Wynford, on examining it, readily found that this was the He said, I have no hesitation in case. 2 E 410 Lectures at the Incorporated Law Society saying, that no one who assists in putting | piracy of such works, or to allow the proforth this work to the public, is entitled to prietor to sue for damages at law, you nerecover in a court of justice. Every servant, from the highest to the lowest, engaged in such a transaction, is prevented from recovering compensation." Serjeant Vaughan naturally asked, Does your lordship think that this objection lies in the mouth of Mr. Stockdale, that late repentant sinner?" Best, J.-" Yes, it lies in the mouth of anybody. Lord Kenyon, who was in the habit of expressing himself strongly, said he would never take an account between two men whose business was transacted on Hounslow Heath, and this was a very similar transaction."-Poplett v. Stockdale, 2 Carr. & P. 200. The plaintiff was nonsuited. cessarily contribute to the dissemination of a multitude of cheap and accessible copies. You thus increase the poison, and also circulate it among a humbler class of readers. To a certain extent, this evil is undoubtedly produced by the refusal of the law to protect a party in possession of a contaminated and indictable article. But this evil is, I believe, not to be compared to the good which ensues from the general operation of the law, which strikes at the very root of the production of these immoral works. By refusing Mr. Stockdale, and such men, an injunction, you certainly spread cheap copies of Harriette Wilson's and Fanny Hill's Memoirs. But look, on A short time afterwards, Mr. Stockdale, the other hand, at the good produced by who had thus availed himself of the mo- disallowing all property in such producrality of the law to evade payment of his tions, and placing them under the ban of printer's bill, came into the Court of King's illegality, and absolutely rejecting all claims Bench, and sued a bookseller for pirating in a court of justice respecting them. If these same Memoirs, which he had before the author of such works cannot recover shewn to be grossly indecent and immoral. the price of his composition, is he likely to Mr. Brougham, his counsel, contended at continue the composition of them? If the great length, that by the law of England, printer cannot recover for the printing, will a man might have a property in an obscene he not refuse to print them? and, above and immoral book, on which he might all, if the publisher, who has laid out confound an action. The plaintiff was, how-siderable capital in producing such a work ever, very speedily nonsuited. Lord Ten- for sale, finds that his whole stock is renterden says, "In order to establish his dered useless, by some cheap bookseller claim, the plaintiff must, in the first place, pirating and selling them at a fourth of show a right to sell the book. If he has their price, will not the publisher find that not that right, he cannot sustain any loss the publishing and sale of such books is, in by an injury to the sale. No lawyer can truth, an unprofitable, as well as a despicasay that the sale of each copy of this work ble and hateful occupation; and that he is not an offence against the law. Upon had better confine his bookselling to those the plainest principles of the Common Law, moral works which are within the pale of founded as it is, where there are no autho- legal protection, and which are beneficial rities, on common sense and justice, this to society? action cannot be maintained."- Stockdale v. Onwhyn, 5 B. & C. 176. That the law upon this subject is at least consistent, no one can possibly deny. Can you conceive a greater absurdity or anomally, than for the law to allow a man to be indicted and punished for a misdemeanour at the Old Bailey, for selling an obscene book, and the next day to allow him to recover, in Westminster Hall, the price of that book, or to recover damages from another bookseller who has sold printed copies of it? But I believe the law to be also politic and wise, and to be well adapted, in its general operation, to the end which it has in view, of discouraging and suppressing such mischievous productions of the press. The argument against it, is, that by refusing to stop, by injunction, the You see, that in all these cases, the party who is refused the remedy in a court of justice, is a guilty party. The remedy is not refused to an innocent party. If I let my house to another, for the purpose of its being used as a house of ill fame, or a common gambling house, I am precluded from recovering the rent, provided I know of the unlawful purpose to which the premises are applied; but if I show that I had no knowledge of the unlawful use made of them, I may recover. From the moment that I am informed of the unlawful use, my right to recover the rent ceases. In the case of an action for use and occupation of rooms, let to an unfortunate woman of the town, the learned Judge who tried the cause said, "If the plaintiff, after he became acquainted with Lectures at the Incorporated Law Society. 411 her mode of living, suffered her to occupy the engages not to carry on his business within premises for the express purpose of conti- certain limits (as is so commonly done by nuing a life of prostitution, and the pre-persons who sell the goodwill of a sursent demand accrued after he had acquired geon's business, or an attorney's, the leases this knowledge of her character, then he of public-houses, and many others), this is not entitled to recover, and your verdict restraint is not void, provided the limits should be for the defendant."-Jennings are reasonable under all the circumstances. v. Throgmorton, Ry. & Moo. 252. The Where an apothecary, on selling his busiprice of dresses furnished to a woman of ness, bound himself not to practise as an the town, cannot be recovered, if the seller apothecary within 20 miles, the bond was knew they were to be used in going to held good.-2 Chit. Rep. 407. But where public places, in the course of her unfortu- a young man bound himself to serve with nate and immoral mode of life.-1 Camp. a surgeon-dentist at York, as his assistant, 348. at a stipulated salary; and, in consideration of receiving the salary, and instructions in business, the young man agreed, under a penalty of 10007., that he would not set up business as a dentist within 100 miles of York, so long as the plaintiff should remain in practice there, the Court held, after much consideration of the cases, that the restriction was unreasonable and void, and that the surgeon-dentist could not sue for the 1000l. penalty.-Horner v. Graves, 7 Bing. 737. Best, J., says, in 3 Bing. 326, "The law will not permit any one to restrain a person from doing what the public welfare and his own interest require that he should do. Any deed, therefore, by which a person binds himself not to employ his talents, his industry, or his capital, in any useful undertaking in the kingdom, is void. But it may often happen, that individual interest and general convenience render engagements not to carry on a trade or profession, in a particular place, proper." If the restraint is general, it is void if it is confined to a particular district or ambit, the question then is, whether, under all the circumstances, it is or is not reasonable.-Leigh v. Hind, 9 B. & C. The point to be shewn by the defendant, in such cases, is the illegality of the use, and the plaintiff's knowledge of it; for the knowledge of the plaintiff is sufficient to implicate him in the illegality, just as much as if he had shared in its profits. By furnishing to the defendant the means of committing a breach of law, he becomes a particeps criminis; and then the rule of law applies which governs all such cases, in pari delicto potior est conditio possidentis. You will find, on reflection, that this is a rule of sound sense and justice, as well as of law; and though it of necessity leads to the practice of parties coming into Court as defendants, and proclaiming their own shame and infamy, this evil cannot be avoided, and is counterbalanced by the good arising from the law utterly rejecting and discountenancing illegal transactions as a subject of suit. At first sight it seems anomalous to allow a defendant to say and prove," I keep a common gambling house -an indictable house; and therefore, because I am violating the law, I refuse you my rent." But, you will remember, this can only be said to a landlord who knows of the use to which his house is applied, and is, therefore, in pari delicto with the tenant. He assists him in breaking the law, and cannot, therefore, recover at law the profits arising from an illegal act. But there are other agreements, which are neither against obvious morality, nor against clear promises of law, which still cannot be enforced in a court of justice. I mean such as are presumed to be PREJUDICIAL TO THE PUBLIC, or, as it is called, contrary to public policy. Thus contracts, by which a party engages not to carry on a trade anywhere in the kingdom, are considered a mischievous restraint of trade, and are held void. See the leading case, Mitchell v. Reynolds, 1 P. Will. 181, where the judgment of C. J. Parker is of the highest authority. But if a party merely In Morris v. Colman, 18 Ves. 437, George Colman, the inimitable author of John Bull, the Wags of Windsor, &c. covenanted with the proprietor of the Haymarket Theatre, not to write farces for any other theatre; and it was contended that the covenant was void, as being like the cases of covenants not to trade or practise at all within the kingdom. But Lord Eldon held it had no resemblance to those cases; and said, "If Mr. Garrick were now living, would it be unreasonable that he should contract with Mr. Colman to perform only at the Haymarket Theatre, and Mr. Colman with him to write for that theatre alone?" Colman's agreement, it will be seen, was not absolutely to write no farces at all, |