Practical Points of General Interest.

447

PRACTICAL POINTS OF GENERAL malice, and thus lead to an inference that the

INTEREST.

RIGHTS OF LODGERS.

In the following case several points are adverted to, of frequent practical import

ance:

Case. The declaration stated that the plaintiff was possessed of four rooms in a dwelling-house, situate in Leicester Street, Leicester Square, by reason whereof he ought to have for himself, his family, friends and acquaintance, and customers, free access into and out of the said rooms, up and down the stairs and staircase leading to the said rooms, and the benefit of a skylight, which before then had lighted the said stairs and staircase, and of a water closet situate on the first floor of the said dwelling-house, and of the knocker affixed at the street door of the said dwellinghouse, and of a bell at the side of the said dwelling house; yet that the defendant wrongfully bedaubed the banisters of the staircase with filthy and adhesive matter, blocked up the skylight, removed the water closet, took the knocker from the street door, and cut the wire from the street bell; by means whereof W. J. and F. N., who lodged in two of the rooms, refused to continue to do so, and certain customers of the plaintiff (naming them) ceased from dealing with the plaintiff. Plea, as to the blocking up of the skylight and removal of the water closet and knocker, that the plaintiff at the several times when, &c. ought not to have the benefit of the skylight, nor of the water closet, nor of the knocker, in manner and form as in the declaration is alleged (concluding to the country); and as to the residue of the supposed grievances Not guilty. It appeared from the evidence of a witness, who accompanied the plaintiff's wife to the house of the defendant, that the latter let the plaintiff's wife two rooms on the first floor of this house and two rooms on the second floor, and pointed out a water closet on the first floor as the one to be used with the lodgings. The lodgings were to be taken for a year from Midsummer, 1832, at a rent of 281.

Munsel, for the plaintiff.-At the time of taking the lodgings, was any thing said about the skylight? Lord Abinger, C. B.-I think the skylight speaks for itself. The defendant's counsel will have to contend that his client lets lodgings, but that the lodgers are neither to have the use of either the knocker or the door bell, nor the benefit of the skylight to enable them to see their way up and down stairs. Evidence was given that the skylight was darkened, the handrail of the staircase tarred, and the knocker taken off the outer door, and that the bell wire of the door bell on several occasions was cut. Bompas, Serjt., proposed to go into evidence of the demeanor of the defendant. Lord Abinger, C. B.-You may give evidence of the general demeanor of a party, to shew that he was actuated by

defendant committed the act complained of in any case where it is doubtful who was the person who did the act; but here, as the defendant has admitted that he did the acts com

plained of, I think you cannot go into that dant, proposed to shew that the water closet sort of evidence. Petersdorff, for the defen

had been rendered useless before it was removed. Lord Abinger, C. B.-You, by your plea, deny that the plaintiff had the use of it. Petersdorff-We mean to say that we removed it because it was spoiled. Lord Abinger, C. B.-You have not pleaded that. Petersdorff.-There is no evidence that the plaintiff had any right to the use of the knocker; but he, in his declaration, states that he had a positive right to the use of it. Lord Abinger, C. B.-There would be a positive right for him to use it, unless it were expressly excepted. If I had gone to the house to call on the plaintiff, and had used the knocker when there was a bell, should I be liable to an action? If the knocker had been on a separate door, it might be different, but, as it was not so, the plaintiff had a clear right to the use of it, unless it was excepted from the contract.

Evidence was given on the part of the defendant, to shew that at the time of the taking of the lodgings, the skylight was not glazed, but was an aperture covered by a trap door, which was sometimes open and sometimes closed, and that the aperture had been glazed after the plaintiff became the occupier of the lodgings.

Lord Abinger, C. B. (in summing up.)—The defendant, in this case, has pleaded that he is not guilty of cutting the bell wire, nor of tarring the hand rail; and he also has pleaded that the plaintiff had no right to the use either of the water closet, the skylight, or the knocker. With respect to the water closet, the lodgers had a clear right to use that, and they would have had a right to use it if nothing had been said at the time of the taking of the lodgings, as it is a thing the use of which is incident to a lodging. It is said, that at first the skylight of the stairs was not glazed; still it was not the less a skylight, because there was no glass in it. It appears, that afterwards the defendant had it glazed; and surely, when that was so, the lodgers had a right to the use of it. With respect to the knocker, there might have been an arrangement made, that the lodgers should have a separate bell, and not use the knocker; but in the present case, as there was no stipulation on the subject, I am clearly of opinion that the lodger had indiscriminately a right to the use of the knocker as well as a right to the use of the bell. I am aware that at some houses servants ring the bell, and persons of superior rank knock at the door; and though if a footman came on his own account to your house you might think it not quite correct that he should knock with a double rap at your door; yet if he did so, I do not think that he would be guilty of a trespass, and be liable to have an action brought aganist him. The intention

448

Examination of Attorneys.

of the defendant evidently was to drive the what fear in the least ought to possess the diplaintiff from the lodgings; and if the de-ligent student, the plan really being for his fendant had pleaded the general issue only, benefit. The legislature never intended, at and had merely proposed to mitigate the da- the original institution of the examination, mages, I think that he might have gone into that a student should be oppressed by a rigorevidence to shew that the plaintiff and his ous one; but only, from his general fitness and family were bad lodgers, and that he did this capacity, that he should, by his manifest abito get rid of them; and that circumstance lity, get clients, as also, by his good conduct might have gone to the amount of damages, and upright intention, keep them. The fear and to the amount of damages only. But on can only emanate from those who have not this record the questions are these-whether that ability and intention, or have been eduthe plaintiff had a right to the use of the water cated in the paltry practices of meanness and closet, the skylight, and the knocker, and whe-chicanery. The profession (as every respectather the defendant tarred the handrail and cut the bell wire.

Verdict for the plaintiff.-Damages 501.
Bompus, Serjt., and Mansel, for the plaintiff.
Petersdorff, for the defendant.
Underwood v. Burrows, 7 C. & P. 26.

EXAMINATION OF ATTORNEYS.

In answer to some inquiries, we beg to state that the Chapters in the Articled Clerks Manual on Equity and Special Pleading, contain all that will probably be necessary to enable the Student to pass his Examination on those subjects; and the Chapters on Conveyancing and Common Law, refer to a short course of Reading towards the attainment of the same object. In the course of another fortnight the Examiners will no doubt be appointed, and the Plan of Proceeding submitted to the Judges as soon as possible.

ble practitioner is aware of) abounds with men of the lowest grade, who have crept into it perhaps upon the basest fraud, and who usually take up their quarters in places which afford a refuge for their iniquity. Those men are not acquainted with the theory of law, nor are they possessed of the least knowledge of our valuable institutes: no; their whole learning consists in the artful points of practice; and were they asked the most simple question of real law, no doubt but that the answer would be, non sum informatus."

But the time has arrived when the judges have thought it necessary to revive that valuable rule of examination, not only for the purpose of causing exertion in present students, who will become attorneys themselves in future, but also to prevent the mal-practices which have thus gained ground in the profession, by the admission of unqualified persons; so that none will be admitted without that

proper credential, a certificate of qualification.

A clerk myself, and one who must hereafter come under that same examination, I am more delighted than otherwise at the proposal; and no doubt a short time will convince all, that it will not be so rigid as at present expected; not but that it behoves the student to use diligence to acquire a knowledge of his profession in all respects, and be capable then of being admitted, should he be so inclined, inundertaking the responsibility of it upon his stead of having further to qualify himself with a six or twelve months' probation in the chambers of a barrister or special pleader; although that addition must be fairly admitted

We add some more Letters on the subject, though we think enough has been already published for any useful purpose. However, the anxiety of a large part of our readers is naturally excited, and we are reluctant to decline admitting any communications that are calculated to afford satis-be upon the theory of the common law; and The examination, I should apprehend, will faction. At present, we can find room only for the following:

To the Editor of the Legal Observer.
Sir,

Much has been said, and by many, upon the subject of the future Examination of Attorneys, prior to their being admitted to practise in the Courts at Westminster; and which (although only an old rule revived, founded on the statute of 2 G. 2, c. 23, s. 2,) has become the common theme of discourse among the younger scions of the profession, as to the ordeal which they hereafter will have to undergo.

Now, for my own part, I cannot conceive

as a benefit even to the wisest.

no doubt Coke and Blackstone will be the basis of it; at least, I should say, such parts as are not become obsolete; and such general statutes as may have made alterations therein : and perhaps questions upon the laws of real property, evidence, and nisi prius, coupled with something upon general learning and literature; and which I submit would be better than an examination in any one branch, from the variety of questions an attorney is subjected to from his clients: but the whole arrangement of the examination, as also the examiners themselves, will be under the guidance and direction of the Judges, to whom the matter must be left, as they alone are the best acquainted with what ought to be the requisite qualifications for an attorney.

Examination of Attorneys.-Selections from Correspondence.

449

ANTI-TACITUS.

Masters now must give time, and clerks | who is in every respect capable of protecting must study, or they will never become that the interests of his client, because forsooth which it is intended they should be, ac- he loved his professional studies more than his quainted with their profession; and I think it schoolboy exercises. would be an excellent addition (as has been said in a former number of your valuable work), that every clerk, prior to his admission, should produce, not only the other necessary documents, but also a certificate of his having attended a course of lectures, which the examiners should consider as a partial qualification; and that thereupon the clerk should be liable to a less rigid examination (if so it may be called) than one who may not so have attended; yet, as I before said, time will make manifest the true plan of examination.

I must now leave the further advocacy of the measure to abler hands; and I trust that you, who so well support the principle of it in your useful work, will give the earliest publicity to any information upon the subject which you may obtain, not for those alone who must necessarily soon come within its operation, but to direct other students in their J. E.

course.

Sir,

SELECTIONS

FROM CORRESPONDENCE.

DOWER.

To the Editor of the Legal Observer.
Sir,

Y. N. N. asserts, (p. 402) that his correspondence does not contain a single contradiction. I shall merely refer to my former letter (p. 385) for a proof to the contrary, and confine myself at preseut to the contradictions contained in the letter in which that assertion is made.

He says "It is quite evident, that the usual limitations, (except of a joint estate,) and which limitations mean those which were made or created prior to the 1st of January 1834, will not bar the dower of widows inarried on or before that day, especially as the 14th sect. saves the rights of such widows." He has himself expressly stated in the subsequent part of this very letter (23d line,) and also in his former one in p. 350, (14th line) that the act does not extend to such widows. Is this a contradiction? If not, I shall be glad to have the statements reconciled.

I cannot conceive what difference a classical education can make in the conduct of professional men. That those whose means have enabled them to receive a college education may have an intimate acquaintance with the etiquette of superior station, I can easily imagine. "An Old Subscriber's" notion, that it should be deemed an essential for a lawyer or practical attorney, is an idea that would not be preposterous from a man who knows more Latin than Law; but being unwilling to suppose "An Old Subscriber" one of that class, He refers to his additional information, in hope a little reflection will alter his opinion. p. 386, (which is also incorrect, as I shall preNo one can entertain a greater veneration and sently shew,) for a proof that the introduction regard for a classical education than I do; of the declaration under the new act, in addiand the man whose good fortune, or rather tion to the old form of limitation, is "highly that of his friends, has enabled him to receive improper." For an answer to this, I refer a polished education, I always consider supe-him to the latter part of the letter of "Ero" rior to him whose humble endowments amount to nothing more than a knowledge of his own language, and a fair proportion of common sense but the superiority granted is in a limited degree. will never allow that a knowledge of the Latin or Greek language gives the possessor a "legal" superiority to the unembellished Englishman; or that the faculty of quotation from Plautus, signifies thorough-bred honesty, whatever it may be with manners. Doubtless a knowledge of the classics is prima facie evidence of a gentleman; but it does not, in these days of plain common sense, carry the weight it might formerly have done.

To permit one of the "to be examined" to plead his thorough acquaintance with Virgil, or any other ancient writer, as a reason why his intimacy with Coke is rather limited, would no doubt be a boon to some of those who have entered the profession of the law without examining their capacity and intellect; but I trust I shall never see the day when a judge destroys the hopes and prospects of a man

in p. 402, and to my former letter in p. 385.
In p. 386, Y. N. N. says, that estates con-
veyed to the husband in fee, or by means of
any uses, &c., may be discharged from the
dower of the widow married after the 1st of
January 1834, by the new declaration, when
introduced in the same conveyance, or by the
husband absolutely disposing of the lands in
his lifetime, or by his will; and if neither of
these shall have been done, then the premises
can only be released by the widow herself; and
if she refuses, then, when her husband shall
die, she will be entitled to dower. But al-
though the husband has not absolutely disposed
of the estates, either in his lifetime or by his
will, and the widow will not release her dower,
can he not bar it by inserting the new declara-
tion in his will? (See the 7th sec. of the new
act.) The same answer will apply to Y. N.
N.'s second paragraph, in p. 386.

T. T.

[Here we think this correspondence may advantageously close. Ed.]

450 Professional Grievances.— Usages of the Profession.—Superior Courts: Rolls.

The high price of these indispensable appendages to the solicitor's library, and the SINCE the last edition of Sugden's Vendors & monopoly thereof by certain individuals, is Purchasers was published, the case of Hodges kept up from the circumstance, that the v. The Earl of Litchfield, 1 Scott, 449, has been Judges will countenance no Reports but those decided, where Tindal, C. J. held, that the plainemanating from these learned personages. tiff, the purchaser, was entitled to recover for This produces a lazy indifference on the part of the expenses of journeys to and from the the reporters to bringing out the reports in office of the vendor's solicitor, where the title that quick succession, which the necessary in- deeds were, for the purpose of investigating timate acquaintance on the part of the solici- the title. tors with the very latest decisions, so imperiGRADUS. ously demands.

Should my hopes, however, be unfounded, I think some measures should be adopted for obtaining cheap and recognized reports of Mr. Kindersley and Mr. Bethell for the cases, and that the same should be freed from petitioner.-The former petition, complainthe shackles of a monopoly by the great anding of various particular items, was irresponsible body now enjoying the exclusive missed on grounds which were not applicable right, and who dole it out to those from whom to this. The taxing officers of all the Courts,

Superior Courts: Rolls Court; Exchequer.

451

as well of Law as of Equity, recognized a dif- | charged 21. 28. for the stays, the amount of ference between the charges allowed for soli- the debt being thereby increased to more than citors' and clerks' attendances. This petition 201 was confined to these items of charge. Mr. Pemberton opposed the petition. Comparing it with the former petition, he observed that that also complained of these charges. He objected to the hearing of this petition; first, that it was not a petition of rehearing after dismissal of the former petition; and, secondly, that the petitioner had not paid the costs of the former; and, thirdly, that the petitioner had, by consent, agreed to pay the amount of the bill of costs, as taxed.

On the trial of the cause, a witness was called, who deposed that the stays were too small for the defendant, and that she was, therefore, obliged to send them back; and it was also proved, that the plaintiff was not an apothecary. The jury returned a verdict for the amount of the first bill only. The affidavits in support of the present application likewise shewed that the plaintiff came to the residence of the defendant with the officer, when he came to arrest her, and that the latter informed the defendant, that if she would give Lord Langdale, M. R.-It was distinctly up a gold watch which she had, the plaintiff stated at the bar, in the argument on the for-would accept it in satisfaction of his claim. mer petition, and not contradicted, that a rule This fact was not now contradicted, but an existed in the offices for taxation of costs, re-affidavit was put in in answer to the rule, in cognizing a difference between the charges for which it was sworn that the stays originally the attendances of solicitors and their clerks. cost 31. 38., and that the 27. 2s. were charged It was then urged on the late Master of the only for their use, the plaintiff having, by Rolls, that if he felt any doubt on that point, wearing them, rendered them perfectly usemeans should be taken for ascertaining the less. fact. There was no substantial difference between the allegations of this and of the former petition; both referred to the same items in the bill of costs. It did not appear what reason the Master had for allowing the particular charges complained of before him, and now before this Court; but the Master must have had some reason for his allowance of these charges in this particular case. Taking into consideration the various other objections RULE OBTAINED ON DEFECTIVE affidavit. to this petition, and without deciding the point as to the alleged difference between the charges for clerks and their principals, his lordship felt himself bound to dismiss this petition, with costs.

Darson v. Stocken, at the Rolls Sittings after Hilary Term.

If a defendant shall be arrested for a sum exceeding 201., claimed on two bills, fur goods supplied, and medical attendance, the first of which did not amount to 201, and it shall appear that no reasonable grounds existed for adding the second amount, by which the debt is increased to more than 201., the plaintiff will be deprived of his costs.

This was an application to deprive the plaintiff of his costs incurred in arresting the defendant. It appeared that the action was brought by the plaintiff, who was alleged to be a surgeon and apothecary, against the defendant, for medicine supplied to her, and for attendance, and a pair of stays which she had been advised to wear. The plaintiff first sent in a bill for medical attendance, amounting to 177. 198. 10d.; but afterwards, shortly before the arrest, he sent another bill, in which he

The Court said that there appeared to be no reasonable ground for the arrest for the 21. 2s., and, as without that sum the amount due would not have been arrestable, the rule must be made absolute.

Rule absolute.-Sutton v. Burgess, H. T. 1836. Excheq.

-CAUSE SHEWN.-PRODUCTION OF FRESH
AFFIDAVIT.-ENLARGEMENT OF RULE TO
RE-SWEAR ORIGINAL AFFIDAVIT, OR PRO-
DUCE A FRESH ONE.

A rule having been obtained on an affidavit,
defective in form, a fresh affidavit cannot
be produced on shewing cause, although
no fresh matter is contained therein, but
the rule may be enlarged to re-swear the
original, or to produce a fresh affidavit.

A rule nisi had been obtained on behalf of the defendant's bail, to set aside the proceedings on the bail-bond against them, on payment of costs, and upon the usual affidavits that bail above had been put in and perfected, and that the application was for the indemnity of the bail.

Cause was now shewn; and an objection was taken to the affidavit on which the rule had been moved. The affidavit was made by three persons, but their names were omitted in the jurat, contrary to the Rule of Court.

In answer to this objection, another affidavit was produced, which was precisely similar to the first, except as regarded the jurat, which was amended. It was submitted, on the authority of a case pointed out, that the affidavit should be received, as it contained no new matter, but was merely a copy of the first affidavit, properly sworn. The original was filed, and could not be re-sworn by the deponent, who was resident in the country.

The Court said, that application should have been made to re-swear the affidavit. The practice now was different from what it was in