The final result of the case would seem to be to establish the following propositions: (1) That a mortgagee or other incumbrancer has an insurable interest in the security notwithstanding the existence of prior incumbrances, provided the aggregate amount of the incumbrances is not greater than the value of the security. (2) A subsequent incumbrancer insuring his interest will have a right to recover in the event of a loss where the security is so reduced in value by the fire as to leave his debt uncovered. (3) This reduced value is the market value of the site and salvage of buildings, and not the value for the purposes of reinstatement, which is in general much greater. (4) Insurance by creditors of their independent interests is not to be treated as double insurance by the owner, in respect that he is made a party to each of the creditors' policies for his reversionary interest.

WILLIAM HARVEY.

A and B, two creditors, hold liens to the extent of a and b and insure to the full value of the liens. If d be the damage actually done by the fire to the security, and if a+b=d+e, e is the excess recoverable in the hands of the owner by the insurers of A and B. The sum represented by e falls to be divided between the insurers of A and B in the proportion of a to b, the sums they have paid in the first instance. A's insurer, on this principle, pays ultimately

which is the amount he would have had to pay originally upon the contribution principle.

SCENES IN COURT FROM THE YEAR BOOKS.

HOW

OW one would have liked to see one of those ancient Courts under the Plantagenets!' was the remark of Wills J. at a meeting of the Selden Society-on an eyre say at Winchester or Hereford,—the King's Justices, the stout old Sheriff with his posse, the bailiffs, the knights, the jurors, the serjeants of the law ware and wise' in their hoods, the appellees and prisoners, and all the motley crowd of suitors and spectators. Where be they all now? They live forgotten in the dusty folios of the Year Books-those Year Books rich with the spoils of time to the student of our legal history, to the ordinary reader an arid waste of legal technicalities. Yet here and there, diversifying the dreariness, we come upon some little green oasis of human interest, a lively wrangle between counsel, a glimpse of national manners, an outbreak of testiness on the part of the Judge, it may be a 'good round mouth-filling oath' such as Queen Elizabeth in her best vein could swear, according to Mr. Froude. A Scotch young lady lamenting her brother's addiction to the bad habit of swearing added apologetically, but nae doubt swearing is a great set aff to conversation:' and no doubt swearing from the Bench is very effective at times. So at least the King's Justices thought, for they swear in the Year Books with the force and freedom of Commodore Trunnion. Do so in G's name,'' By G- they are not,' Go to the devil' (Alez aut grant diable) this to a bishop-are among the flowers of judicial rhetoric. When Hull J. flew into a passion at the sight of a bond in restraint of trade and swore 'per Dieu si le plaintiff fuit icy, il irra al prison' (2 Hen. V. fo. 5, pl. 26), he was only keeping up the tradition of the Bench. Counsel swear by St. Nicholas, which has an appropriateness of its own (21 & 22 Ed. I. Br. Chr. 31, iv. 480).

'A good and virtuous nature may recoil
In an imperial charge,'

says Shakespeare in 'Macbeth.' The Justices felt they presented the King's person and were naturally inclined to be a little absolute in swearing and laying down the law. Cases did not then embarrass them. Never mind your instances,' says Metingham J. to counsel who was citing some previous decision (20 & 21 Ed. I. Br. Chr. 31, iv. 80). Here is a little scene, suggestive of the Court in Bardell v. Pickwick.

Berriwick J. (to the Sheriff). How is it you have attached these

people without warrant? For every suit is commenced by finding pledges, and you have attached though he did not find pledges.' The Sheriff. Sir, it was by your own orders.'

(Mem. by Reporter.) If it had not been, the Sheriff would have been grievously amerced. Therefore take heed.' (21 & 22 Ed. I. Br. Chr. 31. iv.)

On another occasion a jury was shuffling, on a question of legiti

macy.

Roubery J. (to the Assize). You shall tell us in another way how he was next heir, or you shall remain shut up without eating or drinking until to-morrow morning.' (21 & 22 Ed. I. Br. Chr. 31, iv. 272.) This quickly brought the right answer.

Counsel do not escape unscathed.

Hertford J. (to Counsel). You do bad service to your client. You only take care to get to an averment. You have pleaded badly.' (21 & 22 Ed. I. Br. Chr. 31, iv. 180.) This must have been trying for poor Mr. Phunky. The following is more racy. In a writ of Monstravit de Compoto, &c., Hampone (counsel) begins in this seemingly inoffensive manner. 'Whereas he supposes by his writ that he has nothing whereby he may be summoned or attached to render this account we tell you that he has assets in T.,' &c.

Hengham J. Stop your noise (Lessez vostre noyse) and deliver yourself from this account, and afterwards go to the Chancery and purchase a writ of Deceit, and consider this henceforth as a general rule.' (30 & 31 Ed. I. Br. Chr. 31, v. 6.) Let us hope this last statement was lucid to the practitioner of the day. The words at the beginning certainly seem rude, but perhaps they are only what a counsel of that day calls 'curial words' (paroles de la Court). 'Every word,' he says, 'spoken in Court is not to be taken literally. They are only curial words' (20 & 21 Ed. I. Br. Chr. 31, iii)—— a remarkable anticipation of a certain celebrated occasion when the Pickwickian sense of the word 'humbug' was explained.

However, Counsel were able to take care of themselves then

as now.

Sir' (this was the mode of addressing the Court). Sir,' says Toudeby, 'we do not think that this deed ought to bind us, inasmuch as it was executed out of England' (at Ghent).

Howard J. Answer to the deed.'

Toudeby (counsel). 'We are not bound to do so for the reason aforesaid.'

Hengham J. 'You must answer to the deed, and if you deny it then is it for the Court to see if it can try,' &c.

Toudeby. Not so did we learn pleading.' (30 & 31 Ed. I. Br. Chr. 30, ii. 72.) This probably in an audible aside.

The independence of the Bar is emulated by the Reporters. One Robert was charged with harbouring an outlaw. The outlaw procured a charter of pardon from the King, and Robert contended that this purged his offence. Berriwick J. was like Dr. Johnson: his pistol having missed fire he knocks down his opponent with the butt end of it. Robert, pay your fine to the King, for you cannot deny you harboured him, and that was a great trespass against the King,' &c., &c.

'Note, the Justice did this rather for the King's profit than in accordance with the law, for they gave this decision in terrorem? (30 & 31 Ed. I. Br. Chr. 30, i. 506.) Brave reporter! This is better than surreptitiously keeping a drawer like Campbell for Ellenborough's bad law. Later on a reporter-was it the same?—— mentions a ruling with approbation as 'correct.'

The proper construction of the Statute of Westminster came in question.

Hengham J. 'Do not gloss the statute. We understand it better than you, for we made it, and it is often seen that one statute extinguishes another.' Often! we should think so. Counsel of course collapsed. Still, the learned judge failed to appreciate the distinction of intention and intendment. The dictum contrasts unfavourably with the modesty of the late Lord Justice James in referring to a previous decision of his own, which,' he would say, 'is an authority, though I joined in it.'

6

Technicality in these early cases is rampant. The rule is, 'Find a flaw, however microscopic, in the writ, and pray for judgment.' In a Petit Cape,' Agnys was written instead of Agnes. Asserby (for Agnes) thought thereby to upset the whole process, and he said, 'Sir, he sued the Petit Cape against Agnys, whereas he ought to have sued it against Agnes Judgment of the bad writ.'

Metingham J. It is not the fault of the party, but it is the fault of our clerk, and that fault will be amended by us, and so we tell you that the process is sufficiently good, and you are not courteous in speaking in that fashion.'

We find Hengham J. obliged, on another occasion, to observe, 'That is a sophistry, and this place is designed for truth.' (30 & 31 Ed. I. Br. Chr. 31, v. 20.) No applause is recorded however as following this excellent sentiment. Brumpton J. has even to admonish counsel, 'See that there is no deceit in your pleadings.' (30 & 31 Ed. I. Br. Chr. 30, v. 362.) Craftiness in pleading was the order of the day, like the subtleties of the Schoolmen. Indeed Durand, a thirteenth-century writer, recommends advocates to adopt what he calls 'a vulpine simplicity.' 'You have admitted this, God help you,' says the Court on one occasion.

On another, counsel had made a slip in vouching the wrong person.

Robert (on the other side). 'We pray judgment of this bad voucher.' Warwick (who had made the slip). Leave to imparl for God's sake, Sir!'

(Mem. by Reporter.) He obtained it with difficulty.' (21 & 22 Ed. I. Br. Chr. 31, iv. 492.)

ness.

This excited state of counsel was not altogether professional keenAmercement was the common consequence of an unsuccessful suit. People are always being amerced for false, that is unfounded claims, sometimes sent to prison, Witness the following sad tale of an attorney. It was a case of a claim to land, and alleged default in attending on a given day. B's attorney held to the default. The Justice asked on what day the default was made. The attorney answered that it was on the first day, and it was found that it was on the second day, and afterwards (one or two or three days afterwards) the attorney came and said that it was on the second day, and he held to the default as before.

Metingham J. My fine friend (bel amy), the other day when the worthy man was ready to make his law you said that the default was made on the first day, and afterwards you came and said that the default was made on the second day, and thus you vary in your words and deeds: this Court doth adjudge that you take nothing by your writ, but be in mercy for your false plaint.' (21 & 22 Ed. I. Br. Chr. 31, iv. 460.)

A Prior had hung a thief (who had confessed), and got himself into hot water about it.

Spigournel J. Call the Prior.'

The Prior came.

Spigournel J. Do you claim infangthef and utfangthef?'

Hunt (counsel). Sir, he claims to have infangthef.'

Spigournel J. Was the felony committed within the limits of your franchise?'

Spigournel J. Now, Sir Prior, do you mean to hold a plea in your Court of a felony committed out of the limits of your franchise, when you claim only infangthef?'

(Counsel for the Prior turned and doubled, but to no purpose.) Spigournel J. (to the Prior). You have well heard how it is recorded that you went to judgment on him who acknowledged himself a felon without presentment by the Coroner who can bear record, whereas your Court is not a Court of record, and this you