vises. Historical outlines of the law. which a chattel might be bequeathed over | many instances of bargain were quoted by in like manner with real property. It was Priscot, which he thought bore some siheld, that a man might give, by will, a milarity to the present, and were esteemed book to one of his executors, to have and good in law. Thus, if A. sold a horse to use for the term of his life; remainder for 101. and had no horse at the time, to his other executor to have and to use yet he might have an action of debt for for the term of his life, and then to the the money, though there was in fact no parishioners of such parish. Such was quid quo pro. Again, if one sold his land the origin of those sort of gifts which in for 100l., debt would lie for the money later times have been called executory de- immediately, though the purchaser could not have the land without the ceremony of livery. Notwithstanding these and other instances in favor of the action, the inclination of the courts appear to have been against it; but the cause was adjourned without a decision. A contract could not be perfect without the agreement of both parties. Thus, if a person cheapened wares in a market, and the tradesman named the price, this was no bargain, so as to enable the buyer to take the goods, unless he paid the money, or a day of payment was fixed. The law allowed contracts to include things not in esse. Thus, a man might contract for the sale of all profits and tithes to come of his land the next three or four years. The contract of a servant, attorney, or factor, was held to bnd the principal so as to make him liable for the price, though the thing sold never came to his hands. As personal property had of late years been growing into greater consideration, owing to the increase of trade and manufactures, it became more agitated in the courts. And first, we must observe, that animals that were property ferra natura, were considered as the property of any one. perty, that accrued ratione soli, and gave the owners a title to an action for an injury done to them. If a man came into the freehold of another and cut trees, and made timber of them, the property was considered as continuing in the owner of the soil till it was carried away. If a sow were taken by way of distress, and then pigged, the owner might have replevin of the pigs as well as the sow, and recover damages for both. Property wrongfully taken, remained the property of the owner, whosoever hands it might pass into, or by whatsoever However, there was a sort of incomplete promeans, except only by a sale in market overt. The most usual way by which chattels were transferred from one person to ano ther was by bargain and contracts of several kinds. The foundation of every contract required that there should be a mutual benefit to both parties a quid pro quo, other wise it was nudum pactum. Thus, when a man brought an action upon the case against another for not building a mill by a certain day, according to his engagement, the declaration was held ill, because it did not state that the defendant was to have been paid anything for his labor, in which case the bargain would have been void. A promise to give a person a sum of money if he married her, was a contract, the validity of which was much questioned, on the ground that there was not a quid pro quo. An action of debt upon a promise was debated with sound difference of opinion. In support of it The crime of murder appears to have been distinguished in this reign much as it now is. The killing a man with malice prepense, was held to be felony, as distinguished from that which happend against a man's will. Some discussion and doubt arose in cases of larceny, which occurred in this reign. A man was indicted for feloniously taking and carrying away a box with charters in it, but this was held to be no felony, because charters were considered as realty and not chattels real. At the same time it was laid down that larceny could be committed only of chattels personal. The old maxim of the criminal law, that voluntas reputabitur pro facto was beginning to yield to a contrary opinion. For in the 9th year of this reign, we find a case where a man lay in wait in the road with his sword drawn to set upon a person, and actually demanded the money of one whom he met, yet being interrupted at the moment, and not having taken the Advice to young Practittioners-Legal Lyrics. onion. Allan.-I believe I guess your meaning, and were it not a very particular engagement money, this was adjudged not to be felony. | subject as clearly as ye would slice an The former law in regard to principal and accessory, was also departed from in this reign. In a case that occurred in the 18th year of the reign of the king, two men indicted, one as principal and the other as accessory. The principal was outlawed, but the accessory being taken was tried, found guilty, and executed. What renders this case more remarkable is, that the principal afterwards reversed the outlawry, and being put upon his trial was acquitted. ADVICE TO YOUNG PRACTITIONERS. The novels of Sir Walter Scott contain many pages of sound and judicious advice. That given as by a father who had made his fortune at the Scottish bar to his son, found in Redgauntlet, is well worth the attention of every young lawyer. I committed it to memory fifteen years ago. I have not the book by me, and may not quote literally. "Allan, ye now wear a gown-ye have opened shop, as we would say of a more mechanical profession, and doubtless ye think the floor of the courts is strewed with guineas, and ye have only to stoop down to gather them. Allan.-I hope I am sensible, sir, that I have some knowledge and practice to acquire, and must stoop for that in the first place. Father. It is well said-very well said, if it be well acted up to: stoop to get knowledge and practice is the very word. Ye know very well, Allan, that in the other faculty, who study the art medendi, before the young doctor gets to the bedside of palaces, he must, as they call it, walk the hospitals, and cure Lazarus of his sores before he can be permitted to prescribe for Dives when he has got the gout or indigestion. Allan. I am aware sir thatFather-Whisht-do not interrupt the Court. Well-also the chirurgeons have an useful practice by which they put their 'prentices and tyros to work upon senseless dead bodies, to which as they can do no good, they certainly can do as little harm; while at the same time the tyro or apprentice gains experience, and becomes fit to whip off a leg or arm from a living Father-Do not speak to me of engage ments-but, whisht-there is a good lad, and do not interrupt the Court. May be ye think, Allan, because I have doubtless the management of some actions in de pendence whilk my worthy clients have intrusted me with, that I may think of airting them your way instanter, and so setting you up in practice so far as my small business or influence may go; and doubtless, Allan, that is a day whilk I hope may come round. But before I give, as the proverb hath it, my own fish guts to my own sea maw, I must be very sure that my sea maw can pick them to some purpose. Ye must walk the hospitalsye must cure Lazarus-ye must cut and carve on a departed subject, to shew your skill. LEGAL LYRICS. We present our readers with a parody on Tom Moore's "O! think not my spirits are always as light," being a letter addressed by a learned counsel to an opposing brother, giving him notice of his intention to file a demurrer to some of his proceedings. Oh, think not your pleadings are really so sly, And free from a flaw as they seem to you now, For believe a demurrer will certainly lie, The return of to-morrow will quickly show how. No, law is a waste of impertinent reading, Which seldom produces but quibbles and broils; And the lawyer who thinks he's the nicest in plead ing, THE York Jegal Observer. NEW YORK, MARCH 1, 1845. EXAMINATION OF WITNESSES ON THE VOIR DIRE. IN Jacobs v. Laybourn, (7 Jur. 562,) on application for a new trial, the question was raised as to the period at which on the examination of a witness, the objection that he is interested should be taken. The question is one of some importance; and as there appears to be a difference of opinion among the judges at Westminster Hall, we deem it important to refer to it. Before, however, noticing it, we propose to examine the cases bearing on the question. In the case of Ogle v. Palloki, (Holt, 485,) a witness was examined on interrogatories by the plaintiff, and cross-interrogatories on the part of the defendant. On his evidence being read at the trial, it was objected that he was an interested witness and ought to have been released. Gibbs, C. J., however, overruled the objection, saying, "it ought to have been made in a former stage; and not having been then made, when it might have been cured, it cannot prevail now." But in cases in equity, [MONTHLY PART. laghan v. Rochfort, (3 Atk. 643,) it was held that after publication, the court will not allow articles to be exhibited against the competency of a witness, unless the objection to the competency of the witness comes to the knowledge of the party after examination, and then the court will allow an examination to the competency of the witness after publication, on motion for that purpose. It would seem that all the difficulty about this question has arisen from an indistinct notion of the office and character of the examination on the voir dire. It appears that there is not only an examination on the voir dire, of a witness, but also of a juror, though the term is generally confined to the case of a witness. Co. Litt. 158 b. note (2). In Jacobs v. Laybourne, ROLFE B. said, "with respect to the toir dire itself, does it necessarily follow that the examination on the voir dire must, in all cases, precede the examination in chief? May not the meaning of the old rule be, that the competency of the witness is not to be determined by what the witness has sworn, as evidence to the jury, where the witness has been examined on and that in order to determine whether he interrogatories, it has been held not neces- is competent or not, a separate examinasary to take the objection on the examina- tion, under the name of voir dire, must be tion. For in Perigal v. Nicholson, (Wightw. instituted by the judge? The real truth 64,) the plaintiff had examined a witness may, therefore, turn out to be, that whenon the merits, and by his answer to a sub-ever the examination is stopped by an obsequent interrogatory it appeared that he jection of this nature, the judge should was interested, and it was held that the say, 'now swear the witness on the voir objection to his evidence might be taken dire, in order that I may examine him, to at any time previous to the depositions try if he is competent."" being read. And in Moorhouse v. De Pas- Lord Abinger, Ch. B., in the same case, sore, (Coop. 300,) it was held, that cross-said, "The defendant's counsel have furexamining a witness in equity is no waiver nished us with a proof of the antiquity of of an objection, on the ground of interest, the rule, at least, of the practice contended to the competency of such witness. In for by them. They have shewn that it Needham v. Smith, (2 Vern. 462,) Lord has been recognized by the very high Keeper King observed, "though a witness authority of Lord King, assisted by those is examined, an hour together at law, if in other learned judges who sat with him on any part of his evidence, it appears that he that occasion, and confirmed afterwards was a party interested, the court will di- by the opinion of Lord Hardwicke. rect the jury that he is no witness, nor any In courts of equity, also, it is every day's regard to be had to his evidence. In Cal-practice to object to a witness as incompe Examination of Witnesses on the voir dire. tent whenever his incompetency appears. this kind to be taken, as was done in this There is no examination on the voir dire; case; and whatever new lights may be and it certainly may be said, that the dan-devised for the formation of new rules, we ger spoken of by the defendant's counsel in will for the present supply the old one, for the case of a party withholding his objec- this among other reasons, that if a new tion till he sees a favorable opportunity for rule be desirable, it ought not to have an making it, cannot arise in those courts, as ex post facto operation in the present case. the evidence is kept secret, so that the Indeed, in the cases which have been cited party who would make the objection if he as authorities for an alteration in this rescould, might not know when to take it. pect, the existing practice is expressly reStill the same inconvenience would exist, cognized and acted on, and those cases only more or less, for it might well be said, that amount to the dicta of certain judges, that if a party knew of any objection to the in their opinion it ought to be altered. I witness he ought to state it at once. The think, also, that there is much weight in reason of the practice rests on this ground: the observation of my brother Rolfe, that the law will not allow a verdict to stand, the question of competency is not for the which has been obtained on the evidence jury; so that in every case where any of a person whom the rules of law have question is raised about it, there ought declared incompetent to give evidence***. properly to be an inquiry made of the witThere is no statute which says the incom-ness, who should be sworn to make true petency of a witness must be determined answer to all such questions as the court by an examination on the voir dire; when should demand of him;' in other words, a man is examined on the voir dire, the oath is in this form-'You shall truly answer make, &c.,' and that examination is only to satisfy the conscience of the judge, the jury have nothing to do with it. Now a witness may on his examination on the voir dire appear perfectly competent, and the circumstance shewing him not so appears afterwards. Suppose for instance, a man examined on the voir dire, were, in answer to questions put to him, to swear distinctly that he had never been convicted of felony [but see 4 Term Reports, 440] or perjury, he is then [see 8 East, 77] prima facie competent and is sworn in chief; but while his examination is being proceeded with, if the attorney for the party against whom he appears goes away and fetches the record of his conviction, [S East, 77,] is not the opposite counsel to be permitted to question him anew as to that conviction? So in any other case, I do not see why counsel should be restrained from inquiring at any moment into the witness' competency, and if they see he is swearing falsely, exclude his testimony if they can. A counsel who knows an objection to the competency of a witness might very fairly say, 'I will lie by, and see whether he will speak the truth; if he does not, I will exclude his evidence.' I see no hardship or injustice at all in that course. In short, there is ample authority to shew that the ancient, if not universal practice has been, to allow objections of that an examination on the voir dire may be instituted at any period of the examination. For the sake of convenience, however, it is the usual practice to swear him in the first instance to give his evidence in the cause, and the peculiar form of the oath administered on the voir dire arises from the circumstance that the points to which the witness is about to be examined are not evidence in the cause. It may be very proper to interpolate that oath at any period of the examination of the witness that justice may require, and this consideration will reconcile all the difficulties which have been raised." Rolfe, B., was of the same opinion; the three other barons, it seems, were absent and did not therefore express their opinions. Baron Parke, it appears, had expressed a contrary opinion on the application for a rule nisi. The learned Baron then said, "Where the incompetency of a witness is incidentally discovered in the course of his examination, it may be proper to allow the objection to be made; but if it was known, as in the present instance it appears to have been, to the opposite counsel from the beginning, he ought not to be allowed to take the chance of any advantage to be derived from the witness' testimony, and if it prove unfavorable, get rid of it by an objection to his competency. "There was a case of Yardley v. Arnold, (10 Mee. and W. 141,) in which I consulted the judges on this point, who con Practical Points-Equity. permitted to stand in that relation to an adverse defendant under circumstances of adverse interest." curred in the view I have just expressed. | his miscarrying, will take care, where the In the case which has been cited, (Turner plaintiffs are infants, that he shall not be v. Pearte, 1 Term Rep. 717,) Buller, J., says, 'Anciently, no doubt, the rule was, that if there was an objection to the competency of a witness, he should be exam- In a recent case (Bedwin v. Asprey, 11 ined on the voir dire; and it was too late Sim. 530) the bill was filed on behalf of an after he was sworn in chief. In later times infant, who was an orphan, for the purpose the rule has been a little relaxed; but the of having the rights and interests of the reason of doing so must be remembered. infant and of his sister, the defendant, SaIt is not that the rule is done away, or that rah the wife of the defendant E. C., under it lets in objections which would otherwise a will ascertained and declared by the have been shut out. It has been done court. The defendants, Asprey, G. and principally for the convenience of the W., had been in receipt of the rents of the court, and it is for the furtherance of jus- estate in question in the cause; and an tice. The examination of a witness to account was prayed against them accorddiscover whether he is interested or not, ingly. The defendants now moved that is frequently to the same effect as his ex- G. C., the infant's next friend, might be amination in chief. So that it saves time, removed, and that it might be referred to and is more convenient to let him be sworn the master to appoint a new next friend. in chief in the first instance; and in case The affidavits in support of this motion it should turn out that he is interested, it stated that the interests of the infant and is then time enough to take the objection.' his sister were adverse to each other; that But these observations do not at all apply the next friend was the father of her hushere; for Buller, J., is evidently speaking band; that the solicitor of the next friend of a case where the disqualifying circum- was also the solicitor of the sister and her stance is discovered on cross-examination husband; that the infant, who was sevenon the merits; here, on the contrary, the teen years of age, had written a letter to plaintiff's counsel interposes an objection the defendant, Asprey, strongly disappronot running with the general course of ving of the suit being conducted by the cross-examination; namely, that the wit-next friend. ness has indemnified the attorney in the case." Mr. Baron Parke, then, entirely disagrees with the opinions of the chief baron and Baron Rolfe; and for aught that appears, the two other barons, who did not give their opinions, may coincide with him. PRACTICAL POINTS. EQUITY. INFANT-NEXT FRIEND-REMOVING. IN Peyton v. Bond, 1 Sim. 390, the Vice Chancellor (Sir Anthony Hart) laid it down that the court will remove a next friend, and appoint a new one, where the former is so connected with the defendant, having an interest adverse to that of the infants, as to make it probable that their interest will not be properly protected by him. The Vice Chancellor (Sir A. Hart) said, "The court will watch with great jealousy a solicitor who takes upon himself a double responsibility; and, if he sees a chance of An affidavit in opposition was made by the next friend and his son, And it |