estate; and the deficiency, if any, by such sale, together with all charges attending the same, shall be made good by the defaulter;" and Sir Edward Sugden advises that this condition should never be omitted. It forms a lien on the estate for the purchase money, &c., and if the purchaser do not comply with the conditions, the vendor may, by virtue of this stipulation, resell the estate, and recover the deficiency and charges from the purchaser. And if the money produced by the second sale exceed the original purchase money, the purchaser who has violated the agreement will not be entitled to the surplus, but the vendor himself will be entitled to retain it.1 Conditions posterior sometimes, however, go on to provide for stipulated damages to be mutually payable by either party making default in fulfilling the contract. But the construction of such a clause in the conditions seems to be attended with some doubt. In Reilly v. Jones2, on the sale of the lease of a public-house there was a condition that law expenses, &c. should be paid by the parties in equal moieties, and that, either of them not fulfilling all and every part of the agreement, the party not fulfilling should pay unto the other the sum of 500l., "settled and fixed as liquidated damages;" and it was held by the Court of Common Pleas that the sum thus fixed was not a mere penalty to cover the actual damage, but was itself the measure of damages to be recovered on any breach of the agreement. In Randal v. Everest, however, Lord Tenterden took a different view of such a condition. The agreement in that case contained the following clause; "If either of the parties shall neglect or refuse to comply with his part of the agreement, the party so refusing or neglecting shall pay to the other of them, on demand, the sum of 1007., hereby mutually agreed upon to be the damages ascertained and fixed on breach thereof." And his Lordship in summing up, said: "A great deal has been said about the different import of the terms penalty and stipulated damages; but I am of opinion, and shall always hold so until compelled by a higher authority to say otherwise, that whether the term penalty or liquidated damages be used in the agreement, a party who claims com

Sug. V. & P. 34., 7th edit.

* 1 Bing. 302.

31 Mood. & Malk. 41.

pensation for a default shall only be allowed to recover what damage he has really sustained. Whatever language the parties may choose to use, I am of opinion, in point of law, that a jury cannot be called upon to give more damage than the party has really sustained. I confine my opinion to contracts not under seal; instruments in that form may perhaps receive a different construction." The subject was again discussed in Crisdee v. Bolton', before the Court of Common Pleas, when Best C. J. said he could not subscribe to the doctrine of Lord Tenterden in Randal v. Everest. Sir Edward Sugden has noticed this diversity of judicial opinion; and remarks that whichever may be the correct opinion, a jury may, without proof of damage, give the whole sum named in the conditions. His observation applies also to a stipulation that the deposit shall be forfeited and belong to the seller as stipulated damages: and he adds, that, where the expenses of the resale, &c. are stipulated for, the measure of damages would be those expenses, &c. 2

ART. VII. MEMOIR OF THE LATE CHARLES BUTLER, ESQ.

THE biography of Mr. Butler would, we think, be a pleasant and profitable task. A life of 82 years, distinguished by complete success in the most learned branch of the law, constant labours in the cause of civil and religious liberty, frequent intercourse with great and learned men, and literary pursuits extending over the wide field of history, geography, ecclesiastical and biblical learning, and mathematics, is a subject which would provide ample materials for the writer, and, if properly treated, could not fail to interest and instruct the reader.

It is not, however, our intention in the following pages to give a Life of Mr. Butler, or attempt fully to delineate his

1 3 Carr, & P. 240. 243.

2 1 V. & P. 66. 10th ed.

character. For the first, we have neither time nor space, and to the second we confess ourselves unequal. Were indeed time and space at our command, we would gladly submit to the profession and the public details which, we think, would be acceptable to both; and leaving the second duty of the biographer, at least in part, unperformed, ask each reader, according to his own stock of learning, to pronounce the just estimate of Mr. Butler's literary attainments. It would, we think, be no small balance in which they could be fairly weighed. The limits of our present task will be, to present to our readers a sketch of the chief events of Mr. Butler's life, and a short account of his various publications; reserving for the last place the consideration of his legal acquirements and writings, and the services rendered by him to the science of the law.

66

Mr. Butler was born on the 14th of August 1750, and was descended from the ancient Catholic family of "Butler" of Aston Le Walls and Appletree, in the county of Northampton. Towards the commencement of the 17th century the larger estate at Aston Le Walls passed, by the marriage of an only daughter and heiress, into the family of " Plowden,” of Plowden, in Shropshire, whilst the remaining estate of Appletree devolved upon the younger branch of the Butler family. Simon Butler, the representative of this branch, at the close of the 17th century was employed by the first Duke of Devonshire in negotiating with the Prince of Orange, afterwards William III., and a family tradition records, that he subsequently regretted the part he then took. However this may be, his fortunes were not improved by the great event which followed, and upon his decease, which took place in 1712, his estates were sold. He left three sons, Charles, Alban, and James. Charles died at an advanced age without issue. Alban took orders in the Church of Rome, and filled the office of President of the English college of St. Omer for several years, and died in the year 1773. He is well known by his learned and pious work, "The Lives of the Saints." James settled in London, and married a lady of French extraction of the name of Granom, whose family was honourable, and had long been settled at Ambleteuse. The issue of their marriage was one child, the subject of this memoir.

From his mother, who was a woman of great accomplishments, perfectly versed in the French and Latin languages, and not unacquainted with the Greek, Mr. Butler acquired at an early age a love for literature which never forsook him, and which afforded him a constant source of relaxation during his long and laborious life. In his 6th year, he was sent to a preparatory school near London, and three years afterwards was removed to a seminary at Esquerchin, a small village in the neighbourhood of Douai, dependent on the English college at that place, and, after remaining there three years, he was removed to the college itself. During his stay at Douai, he formed a design of embracing the ecclesiastical state, but which he abandoned in consequence of the opposition of his family. Towards the end of the year 1776, Mr. Butler returned to England. His chief acquirements at this time appear to have been, a sound knowledge of the French, Latin, and Greek languages, and a general acquaintance with the great writers of antiquity. To these may be added, a slight knowledge of music, which he afterwards improved. For metaphysics (a study then perhaps more in vogue than at present) Mr. Butler never had any taste, and he did not commence the study of mathematics till an advanced period of his life, a circumstance he often lamented. The two following years after his return to England he spent chiefly in the perusal of the English poets, modern history, and French literature. In the latter he always took great pleasure.

In 1769 Mr. Butler determined upon the study of the law. The branch to which he devoted himself, less by choice than necessity, was that of conveyancing. His religion precluded him from the Bar, which was not open to Roman Catholics till the year 1791, when Mr. Butler was called to the Bar, and was the first Catholic who received that rank since the Act of 7 & 8 William III. Mr. Butler first placed himself under Mr. Maire, and subsequently under Mr. Duane, both Roman Catholic conveyancers of considerable eminence.1

The English Catholics owe a great debt of gratitude to those members of their communion, who by their honourable pre-eminence in the only branch of the law which remained open to them, afforded during nearly two centuries a living proof of the impolicy and injustice of the laws which excluded the members of their religion from every other branch of that science, and from every public employment in the realm. See 1 L. R, p. 396. - Ed.

The following sketch, by Mr. Butler, of the science, the study of which he thus commenced, and of the most distinguished of those who preceded him in its practice, will, we think, be acceptable to our readers, especially as we believe it has not hitherto appeared in print. "Conveyancing became a distinct branch of the law during the time of the Usurpation, when it was first practised as such by Sir Orlando Bridgman. It then fell principally among the sergeants of the Court of Common Pleas. Sir Edward Northey appears to have been frequently consulted on conveyancing points. The first regular conveyancer was Mr. Pigot. He was a most profound lawyer: his treatise on Recoveries is excellent: he discovers in it a deep and extensive knowledge of real actions, and the Statute of Uses. The first Mr. Webb was the most eminent of Mr. Piggot's contemporaries. On Mr. Pigot's decease Mr. Booth came into repute he was an able lawyer, but greatly inferior to Mr. Pigot. His principal merit was framing deeds: the plan of them was good, the language accurate; their only fault was length. Mr. Filmer was his contemporary, and his superior. After him came Mr. Halliday, Mr. Phipps, and Mr. Banks. After them, but infinitely their superior, was Mr. Fearne. His Essay on Contingent Remainders has never been surpassed. In settling deeds he sometimes shewed great ingenuity, great depth of learning, and great power of language, but of that branch of the profession he was not master: the deeds which he prepared himself were miserably defective. Mr. Hargrave was greatly superior to him in the general learning of the law, and at least his equal in the branch of it to which Mr. Fearne particularly applied himself."

In 1775, Mr. Butler commenced practice as a conveyancer under the bar. Business came to him almost immediately, and continued to increase until the year 1825, when, in his 75th year, his eye-sight, and perhaps his spirits, began to fail him. During the last half of the period we have just mentioned he was, probably without exception, the first conveyancer of the day. His professional income, we are

We have already stated our reasons for differing with this opinion. See 1 L. R., p.396.—E».