be opened. Sir James told him to re-open the gates, saying, he did notchoose to have a rumpus about it Except on these occasions the road had always been open.

Thomas and John Wilson, Esq. two gentlemen of the neighbourhood, had known the park all their lives, and they never knew any interruption to the public in using these roads.

James and Josiah Ogle, Esqrs. →one had known the park 32 years, the other nearly as many. They proved it had always been used as a public road.

A brewer, at Laytonstone,proved, that all his time his loaded dray went through the park without interruption.

Osborne, an undertaker, proved that he accompanied the funeral of Mr. Hatch, of Claybery, in this county, and also that of his son, and that they went through the park in their road from Claybery to Little Ilford.

Robert Wilkie, Esq. Mr. W. Raikes, late sheriff of the county, and John Manby, Esq. all gave evidence of its being a public road during their memory.

J. Vincent, a post chaise driver at the Red Lion at Ilford, for 28 years had driven hired chaises through the park.

Timothy Lewin, another postchaise driver, proved, that he had done the same for many years.

› Thomas Gribble, a very fine old man of 86, and a great grandson of one of Cromwell's captains, proved, that when he was a lad, a relation of his, who lived at Wanstead, always drove him for an airing in the park, he having had a fit of illness.- .

Mr. Justice Heath here inter

posed, and said, surely the right of a public road was proved enough, unless it could be explained.

Mr. Serjeant Shepherd admitted that it was, and said that a great deal of this (what must be consi dered as usurpation on the part of the public) had arisen, in a great measure, from the peculiar state of this property. It had not been under the eye of any owner for many years. The period immedi ately preceding the present action had been one of a long minority. Sir James Tylney Long, the last proprietor, had visited the place but seldom, choosing rather to re side in a distant county, where he had another estate. His immedi ate predecessor, Lord Tylney, "re sided the latter years of his life abroad, and died abroad; so that for the last fifty years there had been no proprietor on the spot to vindicate his right; and during that long period, that which had commenced in aggression, by lapse of time had assumed the appearance of right. He therefore juti fied the conduct of Mr. Wellesley in at least inquiring into this certainly most inconvenient practice of passing through his Park, and claiming a right to go under his very windows, and offend his princely mansion with the passage of unseemly carriages. If the right were with the public, Mr. Welles ley would cheerfully submit to the verdiet; but surely, under such circumstances, he was justified in instituting the inquiry. The an swer he had to give to this case was, that the right had not always been exercised without inter! ruption. But although this estate had been left, as he had stated, in a manner defenceless for many

years,

years, yet sometimes the servants would stop persons going through, and make them turn back. He should shew these instances in evidence, and it would be for the jury to say whether, when they had heard that testimony, coupled with the situation in which the estate had been for so many years, it did not explain the evidence which had been given on the other side. The Serjeant then called some witnesses, but their testimony was so weak, that the Learned Judge directed the Jury to find the defendant guilty, which they did without hesitation.

Court of Chancery, May. 15.-' Before the Lord Chancellor -The Minor Canons of St. Pauls v. Kettle and others. This case, which has been long depending, was decided on Saturday last. It was a bill filed by the minor Canons of St. Pauls against certain inhabitants of the parishes of St. Gregory and St. Mary Magdalene, in the city of London, to compel the payment of 2s. 9d. in the pound upon the value and rents of their houses, under the Tithe Statute of the 37th of Henry VIII. To this the defendants pleaded an exemption from the payment of the full amount, under a particular clause in the Statute, by which customary payments were left as before. To support this defence it was necessary for each individual to prove a customary payment for his house, or for the houses that had stood on the site of his present house, before and since the 37th Hen. VIII. This the plaintiffs conceived they might be able to do, at least as to some of them, by the production of certain documents in the possession of the minor Canens: and accordingly a

cross bill was filed by Morris, one of their number, against the minor Canons, merely for he purpose of discovery. It appeared that the parishes themselves had held these tithes on lease for some time, by which means they paid eight times less than the statutary value; but the Lord Chancellor was of opinion, that no such specific customary payments were proved as exempted any of the houses of the defendants from the operation of the statute, He had occasion lately to examine this question minutely in the House of Lords, (in the case of the East India Company and Antrobus.) He had no doubt as to the law; and, therefore, thought it unnecessary even to direct an issue.-Decree for the plaintiffs.

Court of King's Bench, Saturday, March 6-Beaurain, v. Sir IV. Scott. Mr. Tindall opened the pleadings, and stated, that this was an action on the case, brought by plaintiff, who was an attorney, against the defendant, who, as Judge of the Consistorial Court of the Bishop of London, had excommunicated the plaintiff without having cited him, because, being assigned as guardian ad tem for his son, in a cause between his son, a minor, and his son's wife, in which the wife sought to get a divorce from bed and board, on account of alleged cruelty and adultery on the port of her husband, he refused to become such guardan.

Mr. Park said, that his situation was most unpleasant; but it was not in the power of the advocate to choose what causes he would defend. It was the proud boast of the British Courts of Justice, that no person in them ever wanted an advocate

advocate, whether they were rich or poor, and however high and exalted their opponents might be. Ecclesiastical Courts were not by the law of the country Courts of Record, and the person who presided in them was amenable in the Courts of Common Law for any act not within their jurisdiction. Neither he nor his client attributed the smallest degree of malice to the Right Hon. Gentleman who was defendant on the record; but his client had suffered most severely from the act of the defendant. The plaintiff, as they had already heard from the pleadings, had been excommunicated, because he refused to become guardian ad litem to his son; but the guardian was liable to costs, and he contended that the father had a right to refuse; and of this opinion the Lord Chancellor appeared to be, in the case of this very plaintiff, which is reported in 16 Vezey's Term Reports, page 446, where he says he did not see how a father could be compelled to be a guardian ad litem of his child. The plaintiff was excommunicated in the church of Bishopsgate parish, and it was 10 months before he was absolved. He would prove, that before the excommunication his client was an attorney in great practice, affluent in his circumstances, and respected by his friends; but that in consequence of the excommunication he lost his business, his creditors pressed upon him, and by one he was imprisoned. It was true that he had appealed to the Court of the Arches, when the proceedings of the defendant were aflirmed; but high as was his respect for the learned personage who presided in that Court, he must contend that his

decision was erroneous. The Rt. Hon. Defendant had himself felt that he had done wrong, for he sent 1501. to the defendant in prison; and although no malice could be imputed to the defendant, still his client ought to be recom pensed for the injuries he had sustained through the erroneous conduct of the defendant.

Sir Samuel Romilly was then. examined, who stated, "that he had ́ applied for a writ of assoiler on account of the plaintiff: he did not know what the Lord: Chancellor had ultimately done upon it: he did not know what the expence was. In Chancery, the senior six' clerk, not in the cause, was appointed guardian ad item; the guardian was never liable for costs; but a minor must file his bill by ant ex-friend, who makes himself liable for the costs.

Mr. Wingfield was examined to the same purport.

Mr. Shepherd, Deputy-Registrar. of the Consistorial Court, deposed, that a citation had been made to

J. T. Beaurain the younger, in a cause of divorce between him and his wife; that he being a minor, it was absolutely necessary to ap point a guardian ad li.em. That Beaurain, jun. and the plainti in this cause, put in a jointaffidavit by Morley, a proctor: the former stating that he had requested his father to be his guardian; and the latter stating, that he had refused on account of his being liable to costs. When this affidavit was read, the Proctor, on the part of the wife, renounced all claim to alimony or costs. Upon that, the defendant appointed plaintiff guardian, being elected by the son, and assigned him to appear on the next Court day. No notice was

given by the Court to plaintiff, of the appointment. It was the custom of the Court to give directions to the proctor to give notice, before he signs the schedule of excommunication. Morley was particularly directed to give plaintiff notice that he was appointed. He did not consider the issuing of a citation, as according to the custom of the Court. There never had been in his recollection an instance of the kind, that is, of a minor cited, to answer in a cause of separation. He considered the father virtually before the Court, by the Proctor giving in the affidavit. The plaintiff was thrice publicly called: the Proctor, on the other side, prosecuted the schedule of excommunication; but the Judge directed it to be suspended till the next bye day, about nine days. The schedule of excommunication was then put in; by which it appeared that plaintiff was excommunicated by defendant, for manifest contempt and contumacy, in not appearing at a certain time and place.

Cross-examined by the SolicitorGeneral. He was excommunicated for not appearing, not for refusing to become guardian; his presence was required; the proceedings were according to the practice of the Court; the apparitor makes proclamation, and on his not coming in, the schedule of excommunication is of course. If the party comes in after schedule is signed, and conforms, the excommunication does not take place. The Court could not proceed without a guardian having been appointed; and as the opposite party waved alimony and costs, the guardian could not be liable to any costs unless he had appointed

a proctor; but he might have ap peared in person, and one act of appearance would have been sufficient to have launched the cause, and it would have afterwards proceeded in panam. The day he might have come in, he appealed. Morley having brought in a joint affidavit, plaintiff was considered as having appeared; notice was inferred from the course of our proceedings. He who has once ap peared, is considered as appearing from day to day. The appeal being lodged, proceedings were stayed: but the proctor having brought in the remission from the Court of Appeal, had that Court reversed our proceedings, the excommunication could not have issued; he might have appealed to the dele gates.

Morley, a proctor, examined · stated that plaintiff had applied to him in the cause of his son. He told him his son must appear by guardian. Plaintiff said he would never appear as his guardian, bis:: conduct having been very bad. : Never knew an instance of excom-: munication for not being a guard. ian ad litem. Never appeared for plaintiff; had orders not to appear for him. No citation was served: on plaintiff; that was the ground of his appeal.

Cross-examined.—Plaintiff cone sulted him for his son and himself: all he did was on the credit of the father. There was not an appear~1: ance entered he took instructions: from both for the affidavit: he: thought the plaintiff attended in i Court, and refused to be guardian. He told plaintiff that the schedule. : of excommunication was signed. Had plaintiff employed him as proctor, he would have been liable. to his attendance every Court-day.

If the party does not appear, the schedule of excommunication is signed; but, except in this instance, never knew it to have been signed on the same day Plaintiff bad only to come in and say, here I am. On re-examination he said, that he thought a party, not of the cause, could not be proceeded against by excommunication.

The Reverend William Harrison proved that he read the sentence of excommunication to a congre. gation of 4 to 500 persons.

Dr. Coneybear proved that he read the sentence of absolution.

A person was called to prove the loss plaintiff had sustained in consequence of the excommunication, but he was not acquainted with any particulars.

The Solicitor-General said, that this was a most singular cause, whether the situation of the plaintiff or of the defendant were considered. The action was brought for damages sustained by a judgment stated to have been illegal: but the least imputation of malice in the defendant was denied. The plaintiff was not proved to have sustained any loss; this action was, therefore, brought in order to settle a point of practice. It had been a source of great uneasiness to the defendant, who, having gone through a blameless life, now at an advanced period of that life found it to be a cup of some bitterness, that he, a Judge, should be brought into a Court of Common Law, accompanied with a suggestion that he had passed an ilegal sentence-a sentence he was bound to give; but which, hough not from its actual power, was most unpopular, and which neither the defendant nor the Right Hon. Gen

1

tleman (Sir J. Nicholl) who sat beside his lordship, ever passed without an anxious wish to be sa ved from the necessity. But it had been said, that Sir W. Scott gave the plaintiff a sum of money, and was, therefore, conscious of injus tice: such a charge filled him with disgust and abhorience for the person who had made his Learned Friend the organ of it. But it Sir. W. Scott were blameable, Sir John Nicholl was infinitely more blameable. Sir W. Scott acted on a new question on the exigency of the moment; but Sir J. Nicholl had time for reflection, and had the assistance of able advocates, and of the former judgment, and he confirmed this unjust judgment. The son of the plaintiff was mar ried under age, and had been guilty of the most atrocious cruelty, and of adultery; the wife sought redress; and this was a case in which a judge would be most unwilling that any delay should take place. The father was the natural guardian of the son; and when the right to alimony or costs was waved by the other party, the Judge appointed him guardian: of this appointment he had notice from the proctor on the other side, Mr. Espinass called on Sir W Scott, and having described the forlorn situation of the plaintiff, Sir W. Scott, out of pure benevolence, as was admitted by plaintiff's own letter, gave him 1501. This benevolent act he had cause to lament: it was merely produc-, tive of repeated attempts to get more money. It was an indiscretion, but a virtuous indiscretion, in Sir W. Scott, to give the plaintiff any thing; but it had been carried too far, and could not be carried farther.