one of trust only for those who had been the hæredes. In her own words she vindicated to herself the "administration of intestates' estates," and this word was used intentionally, as in its Roman idiom it expressed a fiduciary interest only. The common lawyers, in later days, affected to ignore this trust in the bishop, and to treat his interest as quasi beneficial. This miserable affectation affords the only key to the otherwise inexplicable doctrine of the judges, in the disputes which led to the Statute of Distribution. And in the same strain, at an earlier period, Lord Coke3 had sneered at the distribution of personal estate being in the "conscience of the ordinary." The church, as it claimed the inheritance in the character of trustee only, so it took care that its nominee should faithfully discharge its duties in perfect assimilation to those of the Roman succession, by dividing the estate, after the payment of the debts, amongst those whom the same Roman scheme recognized as his co-heirs. With this view, the ordinary took bond of the grantee in the well-known form which still survives. The grantee was amenable to him for an account; but in return for it he received the beneficium inventarii, when the estate was insufficient to meet all the demands upon it.

In making a grant the ordinary did not part with all his power; but continued to exercise a controlling influence over the grantee. He was not entirely functus officio, but could, on occasion, resume his power; he could revoke grants made on a false suggestion of the grantees, and for these, or for grants

1 The Scotch Church levied a contribution upon lay intestates' estates, as a fine for its protection (Erskine, book 3, tit. 9, 11). This was clearly an infringement of the Canon Law. By that law a bishop, in the way of contribution, could not go beyond the Lex diocesana, which only applied to the clergy, and gave to each bishop a right to receive cathedraticum, certain portions of tithes, and oblations, and hospitium. (Lehrbuch des Kirchen-rechts, von Richter, p. 221, in note. Leipzig, 1848.)

2 Calvin's Lex Jurid. sub voce Administrare: "Administrare alteri, pro distribuere et impartiri, sic hæres fidei commissum administrat, administrare dicitur, qui quid alii restituit," &c.

3 Coke on Littleton, Instit. pp. 7, 8, 12: “A man by the common law cannot be heir to goods or chattels, for they are either disposed of by testament, or are at the disposition of the Ordinary, to be distributed as in his conscience he thinketh meet."

rendered void by death, he could substitute fresh ones, as in either case the aditio hæreditatis had reverted to him, fanbase In subsequent times, statutes confirmed to the next of kin a legal right to demand administration of the ordinary in exclusion of all other interests; but the same statutes have still let the ordinary remain the legal hæres, and have ratified to him his legal estate in the intestate's property, until administration is committed. They have also left to him an unfettered right to appoint whomsoever he pleases to protect the perishable portions of an estate, when a will is disputed, or the next of kin are not readily forthcoming.71.29-3

This is the English system; and so embracing is it in its operation, that even the crown, without the authority of the ordinary, cannot deal with or appropriate bona vacantia, but administration of such an estate must be first obtained to its nominee..

1.

These are the past and present facts of the case. The question now is, what is the value of the theory? și 1 in coq fal6,

1

We think that the system of appointing a deputy, in loco hæredis, who shall be a trustee for others, seems to have a good foundation in reason and policy, and to be adapted to the circumstances of our times, which are those of dispersed and floating wealth difficult of realization, on the one side; and weight and multiplicity of incumbrances, equally difficult to arrange and classify, on the other. Our reasons for so thinking may be easily stated. on it. 752 76m 10; hors get sabing

The putting up of one representative instead of many successors, affords a prompt and facile remedy for creditors and distributees, and also a ready means of collecting the national taxes, which a diffusive succession, like that of the Roman, would constantly frustrate.to izon 96T otatzo si lo acontecu do

Again, it affords to honest debtors a satisfactory means of discharge, and thus materially aids the collection and preservation of the estate. On these grounds, we regard the present system as one well adapted to the condition of the country, and to be beneficial in all respects, both as regards the creditor and the debtor of the estate; but it is possible that these advantages, though existing in theory, may often be annihilated in practice,

Y

owing to some engrafted but separable fault. Personal representation presupposes in law the perfect honesty of the representative; the letters of the ordinary describe his grantee as a person in whose fidelity he confides." Where the fidelity is justly assumed, and the trust is faithfully executed, this mode of administration, by affording facility for collecting the assets and discharging the liabilities, is, as our former remarks tend to show, in our opinion admirable. But suppose the other caseviz., of an administrator whose fidelity only exists on the parchment which accords him that qualification, an administrator whose antecedents disqualify him for that or any other trusta fraudulent bankrupt an emancipated felon; in fact, suppose any form of human baseness or untrustworthiness, any vitium animi save madness; suppose such a case, and suppose also a cloud of affrighted creditors who appeal to the law for merited protection against such an administrator, but cannot find it ; for the law, in obedience to the wisdom of 21 Henry VIII., will only permit the ordinary to depute the next of kin, such a one as we have described trifurcifer though he be. Cases of this kind daily occur, and they have this consequence: the administrator pockets the assets, and with them and by means of them he emigrates to some Golconda of the 19th century, leaving the creditors of the deceased, whom he faithfully represents, to medi tate, at their leisure upon the imperfection of English Law, and the inconsistency of legal theory with fact. These being the faithful, the creditor may say with Euclio, "certum est: Silvano potius credam quam Fidei."

As the law now stands, this can never be prevented; for the ordinary is bound to grant administration to a next of kin with+ out the right of, inquiry either into his character or the peculiar circumstances of the estate. The next of kin, therefore, may be a rogue, or the deceased may have died a bankrupt; but in neither event has the ordinary the discretion to reject the next of kin.

It is clear that, in the present state of the law, fraud cannot be prevented even where it may be immediately foreseen. In

The monstrous

*;

are well illustrous evils arising from the want of this discretionary power in a late case (Drewe and others v. Long, and also against Rolf and Cayford, 1 Spinks, 391), which shews the operation and

palliation of the system, it cannot even be alleged that there exists a remedy, though serò datum. It is very true that a bond is given to the ordinary for the faithful administration of the estate; but this guarantee is so quaint and peculiar in its style, and so fenced round with legal subtleties and absurdities, that it inspires in the defrauded claimant as little hope as it affords aid. Thus, there is neither prevention nor cure; and both must continue to be impossible until the obnoxious statute of our great ecclesiastical reformer is repealed, and the ordinary is restored to the free and unfettered discretion which he possessed in the days of Magna Charta, to select and depute whosoever appear fittest for the trust.

Should this be done, it will probably go farther than any other measure to solve successfully the problem of securing the estates of deceased persons from the mala fides and rapacity of our avaricious and speculative countrymen. H. C. C.

84

WE

ART. II.-TRIAL WITHOUT JURY.

THE JUDICIAL CHARACTER.

have before us the clause in the Common Law Procedure Act of 1854, enabling the judges of the Superior Courts of Common Law to try, with the consent of the parties, questions of fact without jury. That enactment gives rise to many reflections.

The judges may find it an easier duty to try causes unembarrassed by juries; but they will, we think, feel it to be a nobler function with which they may now find themselves invested, that of forming and giving expression to their own judgments instead of acting as the assistants of other men. Hitherto their duty has been to state, as clearly as might be, the questions to be decided, and to direct and assist, by what is consequences of the present law, in one set of cases, viz., where the dishonest next of kin exclude the assignee of a bankrupt's estate, the latter having a right to the goods, but not to the administration.

called a careful summing up, twelve men, whose minds may be already possessed by prejudice, or puzzled by the sophistry, or disturbed by the clamour, or led astray by the eloquence of opposing counsel. Some judges also, with more or less skill and success, and more or less consistently with their duty, have had the habit of making attempts to lead juries to right verdicts, or to what the judges have deemed right verdicts. There were persons who thought that occasionally the summings up of Lord Abinger had too much the character of pleadings in favour of the side which he considered entitled to the verdict. In the former part of his life at the bar, he had a certain way of his own of telling the jury what their verdict ought to be, so as to leave them scarcely the power of deliberation. This command over juries was more appropriate to the bench, and was frequently, in the case of Lord Abinger, irresistible. We remember a trial at which he presided at Stafford, in which, in the course of his summing up, he explained and illustrated the paradox: the greater the truth, the greater the libel. He put the case of a woman who, having erred in her youth, had afterwards, when residing in another part of the country, married a respectable man, and had become the mother of a family; and he supposed a person, knowing the events of the earlier part of her life, to disclose them for the purpose of annoying her husband, or herself, or her family. The way in which he put the case we cannot attempt to relate. In his quiet tone, Lord Abinger asked, if in such a case the saying would not be true: the greater the truth, the greater the libel. He told them to ask their own hearts for an answer. We well remember the answer our own feelings gave; and we could plainly perceive the effect of the question on the minds of the jury; and we now refer to it, not for the purpose of illustrating a paradox, but for the purpose of illustrating the sort of power one of the most successful of modern pleaders, carrying his skill to the bench, exercised over the minds of others.

Lord Ellenborough commanded juries by look and tone. His personal dignity was in itself a power and a strength; but it did not always prevail. The London juries came latterly to resist his charges, as too dictatorial. There have been other

VOL. LIII. NO. CVI.

C