years next after a present right to receive it had accrued to some person capable of giving a discharge, or after some part payment or written acknowledgment; and this enactment is now extended to shares of the personal estate of persons who have died intestate,

There can be no doubt as to the policy of this extension. A very slight acquaintance with our equity reports will convince any one, that suits of the nature here restrained are, more than any other class, supported by evidence of a suspicious character. These claims, like the peerage claims in the House of Lords, shew how the looseness of the rules of evidence, necessarily admitted in cases of pedigree, affords a wide field for the operations of the forger; and the Court of Chancery, and the committee of privileges are alike aware, how often a letter or a tombstone is discovered at the very moment when it is required to prove some asserted identity. We do not wish that any lapse of time should be held to bar the right to a peerage; but we regard with satisfaction every measure that will repress the practice of using the fancied rights of so-called heirs-at-law as a mere instrument for iniquitous extortion.

The 14th section of the Act gives to executors and administrators an immediate right to obtain, by a summary process, an ordinary administration decree. A similar procedure was instituted by the act which goes by the name of Sir George Turner ; but until now the right was hampered by a provision, that no order could be made until the expiration of one year after the death of the deceased. Power is also now given to the court, to issue an injunction to restrain any creditor from proceeding at law immediately after the order is made, which, under the former Act, could not be done until after the Master's report. These two enactments show, that the legislature does not now. partake in the feeling of jealousy with which bills of conformity were formerly regarded by the court; no doubt, care will be required to prevent abuses of the power now given to the court; but probably Lord Eldon's rule, in Paxton v. Douglas, 8 Ves. 520, will be applied, and will be found sufficient for the purpose.

The last section in the Act enacts, in a somewhat Irish fashion, that the act "is not to extend to Scotland, nor are any of the clauses, except clause six and the subsequent clauses, to extend to Ireland." Considering that the exception relates to ten clauses, we should have thought the desired result might have been. arrived at simply by enacting, that the first five clauses shall not extend to Ireland.

It is not for a moment to be doubted, that this act mends some few holes in what is called "the law of property;" but yet there are many whose opinions ought to have great weight, who contend that the patchwork system of legislation here pursued has done as much harm as good. "Take, for instance," as it has been well said, "the first two sections of the statute. Will they be of any benefit, or offer any facility, to debtor, creditor, purchaser, or mortgagee? It is clear that they will not only be of no benefit, but that they will actually be prejudicial to all those persons; and it would have been far better had the Lords rejected the whole measure, rather than agree to the amendments made by the Commons in these sections."

It is, we must admit, a bad policy to assent to injurious alterations in clauses dealing with so important a branch of the law of property as that relating to judgments, for the sake of effecting a few amendments, however beneficial, in other branches of that law; and for this reason we are unable, on the present occasion, to congratulate Lord St. Leonards upon the part he has taken in passing the statute through parliament.

ART. VI.-JUDICIAL CONTRADICTIONS.

MOST lawyers in Great Britain and America have read one

treatise at least on the "Conflict of Laws," and all have witnessed, in practice, the conflict of lawyers. When the struggle is confined to the advocates' benches and jurists' chambers, one looks upon it as a natural consequence of the fallen nature of

clients, the imperfection of human laws, and the fallibility of its professors; but when it reaches the judicial bench, and various members of the same court take opposite and repugnant views of the laws which they have to administer, it is a far more serious affair-it shakes the faith of the vulgar in the absolute wisdom of the bench, and provokes the speculating practitioners to venture improperly on litigation and appeals; while it proclaims aloud grave defects either in the constitution of the bench or the construction of the law. It would be a woful day for England if the opinion gain ground that judgments are but guesses, and that causes are only decided by the judge's feelings, fancies, and foibles, or the tendency of his prejudices, preconceptions, and sympathies.

One recent case carried up to the House of Lords has displayed, curiously enough, great contrariety of judicial opinion. We refer to Marriage v. The Eastern Counties Railway Company. In this case, happily, the point in debate turns chiefly upon the proper grammatical construction of a sentence. In truth the whole conclave-bitter client, astute counsel, erring judges, and judges in error-were in full cry in search of an antecedent. Often have we seen devout lawyers of a certain school fall down and worship a precedent, but here the subject of earnest supplication was an antecedent; could this have been certainly found, it would have finally settled the question.

The dispute arose upon two sections, which we here subjoin, of the Lands Clauses Consolidation Act (8 & 9 Vict. c. 18, sect. 93 & 94.)

They run thus:

"And with respect to small portions of intersected land, be it enacted as follows:

"XCIII.-If any lands not being situate in a town, or built upon, shall be so cut through and divided by the works as to leave, either or both sides or on one side thereof, a less quantity of land than half a statute acre, and if the owner of such small parcel of land require the promoters of the undertaking to purchase the same along with the other land required for the purposes of the special act, the promoters of the undertaking. shall purchase the same accordingly, unless the owner thereof

have other land adjoining to that so left into which the same can be thrown, so as to be conveniently occupied therewith; and if such owner have any other land so adjoining, the promoters of the undertaking shall, if so required by the owner, at their own expense, throw the piece of land so left into such adjoining land, by removing the fences and levelling the sites thereof, and by soiling the same in a sufficient and workmanlike manner.

"XCIV.-If any such land shall be so cut through and divided, as to leave on either side of the works a piece of land of less extent than half a statute acre, or of less value than the expense of making a bridge, culvert, or such other communication between the land so divided, as the promoters of the undertaking are, under the provisions of this or the special act, or any act incorporated therewith, compellable to make; and if the owner of such lands have not other lands adjoining such piece of land, and require the promoters of the undertaking to make such communication, then the promoters of the undertaking may require such owner to sell to them such piece of land; and any dispute as to the value of such piece of land, or as to what would be the expense of making such communication, shall be ascertained as herein provided for cases of disputed compensation; and on the occasion of ascertaining the value of the land required to be taken for the purposes of the works, the jury or the arbitrators, as the case may be, shall, if required by either party, ascertain by their verdict or award the value of any such severed piece of land, and also what would be the expense of making such communication."

We will first notice the case in the Exchequer Chamber,1 before Cockburn C. J., Erle J., Williams J., Crompton J., and Willes J. The last-named judge thus described the case, and its position before the court. He said:-"This was an action brought by Mr. Marriage against the Eastern Counties and the London and Blackwall Railway Companies, and the declaration stated, that the land of the plaintiff had been intersected by the railway, and he claimed a writ of mandamus, directing the defendants to make a communication between the severed parts of his land, which he alleged to be in a town, under the 68th section of the Railway Clauses Act. The defendants rely on section 94 of the Lands Clauses Consolidation Act, which gives the company the option, in cases falling within that section, when they are called upon to make a communication, to elect to purchase the land. 127 L. J., Ex., 185.

The question is, whether that section applies to land within a town or built upon, this land having been found to be such by the verdict of a jury. The case was argued before the late Alderson B., my brother Martin, and my brother Bramwell. Before judgment was given, Alderson B. died; and the judgment of the Court of Exchequer was entered, in order to give the defendants an opportunity of appealing. According to the opinion of my brother Martin, and contrary to that of my brother Bramwell, I am of opinion that the judgment of the Court of Exchequer ought to be affirmed, and in this opinion my brothers Williams and Crompton concur. The question turns upon the true construction of the words 'such land,' in the 94th section of the Lands Clauses Consolidation Act, 1845; and it is whether the word 'such' has reference to the heading which precedes both sections in these words-'And with regard to small portions of intersected land, be it enacted as follows:' or whether it has reference to the last antecedent which would make sense in the context; namely, land described in the beginning of the 93rd section, by the words 'not being situate in a town or built upon.' The latter is the construction at which, after much consideration, I have arrived." The learned judge therefore held that Mr. Marriage might compel the company to make the bridge, and the company could not enforce upon him the alternative of selling his bits of intersected land to them.

1

Let us now proceed to the Court of Error, and begin with Blackburn J., who delivered his judgment first, and with it a lecture to his seniors, neither appropriate nor felicitous.

And here we may remark, that the differences of opinion, on the part of the judges respectively, seem to have been expressed in a very uncompromising manner. Indeed, the mode of expressing the difference of view reminds one of the tour de phrase sometimes heard out of courts, when a positive statement has been made to an incredulous auditor. "If any other person had ventured such a statement," it is sometimes said, "I would not have believed it." So the prevailing form of expression, among

1 27 L. J., Ex., 187.