coming in under a mortgagor may experience from being treated as a trespasser by a dormant mortgagee, so that if the doctrine could be sustained at all, its proper place would be the Court of Chancery, and it is remarkable that in the next paragraph of the same judgment in which it was propounded, Lord Denman referred to the error of his great predecessor Lord Mansfield, of supposing that the right to recover in ejectment could depend on any thing but the legal right of possession. But in point of fact there is no ground in the case supposed for the interposition of chancery, for there is no hardship on the part of the tenant which gives him any claim for its interference against a mortgagee. The title to land in this country does not depend upon the apparent ownership of it, which the doctrine seems to assume, and if a tenant or other party is so incautious as to expend his capital upon the faith of a lease granted by a mere apparent owner, without any inquiry as to his real title, he cannot complain if he finds that he has been building upon the sand.

It must be observed that we entirely assent to the decision in the case Evans v. Elliot, for it is clearly in accordance with the true principles of tenure. But this case gives further confirmation to the observations we made in a former number, as to the inconveniences arising from the anomalous relation between a mortgagor and mortgagee, and we would again urge it upon the attention of conveyancers to devise some better system of mortgaging, than that which now prevails, by which the present evils might be avoided. We may say that we have not discovered any reason why the plan we proposed in the article just referred to might not be in substance advantageously adopted.

V. Affidavit-Declaration.

Our readers are aware that by a recent act1 it has been enacted that it shall be lawful for any justice of the peace, notary, public or other officer, now by law authorized to administer an oath, to take and receive the declaration of any person voluntarily making the same before him in the form in the schedule to the act annexed, and that if any declaration so made should be false or untrue in any material particular, 1 5 & 6 W. 4, c. 62, s. 18.

the person wilfully making such false declaration shall be deemed guilty of a misdemeanour.

It is often found necessary to exercise the power given by this enactment in making out a title to property sold, and the enactment has certainly been found very useful. But a question may arise whether a purchaser is in all cases bound to rely upon a voluntary declaration. It is plain that a title may rest entirely upon a fact which depends simply upon living evidence, which can only be fixed and rendered permanent by a declaration under this act, unless a bill be filed to perpetuate the testimony.

The following case lately occurred. Real property belonging to a female in a humble station of life was upon her marriage settled upon herself for life, with remainder to her children in fee. There was a child born, which only lived a few hours, but who of course took a vested estate in fee under the settlement. Then the mother died, and the dates placing the case under the old law, the eldest brother of the husband claimed the property as heir at law. It was stated that the only persons who could speak to the child having been born alive were a surgeon and the nurse, and their declaration under the act referred to was offered.

Such declarations may also be of great importance with respect to the identifying of property, and it seems to be the opinion of eminent conveyancers that a purchaser is bound to rely upon them, and if he refuses on the ground that the declaration is merely voluntary and not a judicial proceeding, a bill may be filed against him, and then the declaration would become part of a judicial proceeding and the purchaser would be compelled to take the title, and probably pay the costs of

the suit.

This we strongly advise, that when such a declaration is relied upon, the purchaser's solicitor should himself see the declarant and cross examine him as to the facts stated.

W. C. W.

ART. VI.-ECCLESIASTICAL LAW.

A Practical Arrangement of Ecclesiastical Law. By Francis Newman Rogers, Esq., Q. C. London. 1840.

LORD COKE says, "Some may doubt how we that professe the common law should write of Ecclesiastical Courts, which proceed not by the rules of the common lawes." Mr. Rogers, in his preface, anticipates a similar doubt, and says that his undertaking would not have been prosecuted "if there had been even the slightest prospect that the subject would have been taken up by abler and more experienced hands.”

In arranging and executing his work his plan seems to have been, to reject such articles of Dr. Burn's work as appeared to be of inferior practical importance, to write anew those heads which are of the most general interest, and to introduce some additional articles which are not given by Dr. Burn. Some of the most important heads in Dr. Burn's book,-such as "Advowson," "Marriage," "Prohibition," "Wills," and others,-were in truth of little value, from a want of selection and arrangement of the materials. It is a book, however, which will ever be a storehouse of canon law,-like Ayliffe, Gibson, or Godolphin; but from the important alterations. which have taken place within the last few years, it has gradually become less valuable as a book of general reference.

Of all the authors above enumerated, Ayliffe is perhaps the least known by common lawyers, but his "Parergon" is the best compilation of canon law. It is arranged and condensed with, extraordinary care and industry; and an excellent lawyer, the late Mr. Justice Taunton, used to say that whenever a question of canon law came before him, he always resorted to the Parergon and was never disappointed. Mr. Rogers has drawn largely from this source. But it is upon the judgments contained in the ecclesiastical reports of modern days that he has mainly built, using in most cases the very language employed by the judge. It is true that this has given to the book before us somewhat of an abruptness of style, and to a person reading on and not merely referring to particular parts, it has a disjointed and patchy character. Yet

14 Inst. $21.

upon the whole we are inclined to approve the course which he has adopted. In the case of Lord Stowell especially, Mr. Rogers might well deem it a contempt of no ordinary description to convey a principle or rule in any other than the inimitable language in which it had been laid down by that highly gifted judge. In the whole range of English literature there is hardly to be found any thing more graceful than the style of Lord Stowell's judgments. Though a captious critic may sometimes say what Horne Tooke said of Junius, "materiam superabat opus," they will long remain the monuments. of the extraordinary faculty he possessed of dignifying mean and elevating common-place topics; and, above all, of rendering the most dry and abstruse subjects of legal inquiry interesting to a general reader.

The judicial reputation of Sir John Nicholl rests on a different basis. His judgments are models of another class: when he investigates a principle of law, he traces it through all its deviations, follows it home to its commencement, and then exhibiting it free from alloy or doubt, obtains for it immediate recognition and acknowledgment. In dealing with facts he never allows himself to be embarrassed by technical or artificial rules: his conclusions are those of sound sense, enlarged and improved by the observation and experience of a man of the world; and though not so much as attempting to emulate the varied elegances of his judicial cotemporary, Lord Stowell, his language is always clear and correct, and, when the occasion requires, nervous and dignified.

For the modern practice in the titles of Evidence, Pleading, and Process, Mr. Rogers has taken the Special Report made in 1832 by "The Commissioners appointed to inquire into the Practice and Jurisdiction of the Ecclesiastical Courts" as a foundation upon which to work in a digest of the modern decisions, illustrated and explained to a certain extent by references to Ayliffe, Clarke, Conset, and Oughton, as the authorities for the ancient practice.

Having thus described the general plan of this work, and indicated the sources from which the mass of its materials have been drawn, we will proceed to notice a few of the more important topics in detail; which will have the double advantage of putting our readers in possession of the present

state of legal opinion regarding them, and at the same time illustrating in the most effective manner the high merits of the book.

Bastard. Under the title "Bastard," the question of "Access" is discussed somewhat at length. Mr. Rogers seems inclined to combat the more modern doctrine on this subject, and. contends that if personal access by a husband is once shown, that is, if husband and wife be once shown to have had an interview, the law raises a conclusive presumption of intercourse, unless the negative be proved or the impossibility of intercourse be established. After noticing the opinions of Lord Redesdale, in the Banbury Peerage case; of Lord Eldon, in Head v. Head, 1 Turn. & Russ. 141; and of Alderson, B., in Cope v. Cope, 1 Moo. & Rob. 275, he adds, "Besides, what is to prevent such a principle from extending to the case of a wife living under the protection of her husband, and from withdrawing the veil which the law has thrown over the habits of domestic life; if, in order to disprove paternity, aljury may be allowed to speculate on what takes place at a single interview, why may they not speculate on what takes place whilst the parties inhabit the same house, a sufficient ground being first laid by proving a total estrangement from nuptial intercourse, and loose and profligate conduct on the part of the wife; if actual paternity be the real object of inquiry, cases have arisen in which it might be as satisfactorily disproved where man and wife are living under the same roof as where they are living apart. But the question in all these cases seems to be, not whether A. is the actual son of B. according to the order and course of nature, but whether he is the legitimate son of B., the son according to law; that is, born under such circumstances as the law appoints to constitute legitimacy."2

Upon such a subject as this, considering the difficulties with which it is surrounded, and the sort of inquiries necessary for minute investigation, general principles are the best. The compiler of the Repertoire de Jurisprudence3 thus expresses himself, "Si cependant la femme prouvait que son mari lui a rendu visite pendant la separation, nul doute qu'on ne dut declarer legitime l'enfant qu'elle mettrait au monde."

1 P. 79.

2 P. 80.

3 Tom 17, p. 415, tit. Legitimité.