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388

Superior Courts: K. B. Practice Court.

deprive the plaintiff of all right to an account against the defendants. It appears to me that he is fully entitled to an account, and that such an account may be obtained in a bill differently framed; but according to the present frame of this bill, I am bound to dismiss it, with costs.

Lovegrove v. Nelson and another, at Westminster, January 23, 1834.

count, after taking out his certificate regularly for several years. Since he had ceased to take out his certificate, he had been acting as clerk to other attorneys.

Purke, J., thought that, under these circumstances, the attorney might be re-admitted without payment of fine or arrears of duty. Rule accordingly. Ex parte Joy, H. T. 1834. K. B. P. C.

King's Bench Practice Court.

ADMISSION OF ATTORNEY.-CERTIFICATE.

Where an attorney need not be re-admitted, although after admission he has not taken out his certificate.

On application to the Court with respect to the admission of an attorney, the following facts appeared-the applicant had been admitted, but had never taken out his certificate, or practised.

Parke, J., was of opinion that the attorney might take out his certificate, and practise, as he had in fact never been off the roll, and therefore re-admission was unnecessary.

Ex parte Binks, H. T. 1834. K. B. P. C.

CORONER'S INQUISITION.-QUAKERS AND

MORAVIANS.

What is necessary to be alleged on a coroner's inquisition, where it is had before less than twelve persons on oath.

On application to quash a coroner's inquisition, the ground of objection appeared to be, that the inquisition stated it to have been taken on the oaths of eleven men, and the affirmation of one man. It was contended, that although by the late act (the 3 & 4 W. 4, c. 49) Quakers or Moravians might act on inquisitions, yet it must appear that the person affirming was either a Quaker or a Moravian.

Purke, J., was of opinion that it ought to appear on the face of the inquisition that the one man affirming was either a Quaker or a Moravian; and accordingly he directed the inquisition to be quashed.

Rex v. Polfield, H. T. 1834. K. B. P. C.

AFFIDAVIT TO HOLD TO BAIL.-BILL OF EXCHANGE.

What should necessarily be alleged in an affidavit to hold to bail on a bill of cachange. On shewing cause against a rule nisi for the discharge of a defendant out of custody, on the ground of a defect in the affidavit to hold to bail, the alleged defect was, that the affidavit stated the defendant to be indebted to the plaintiff in a certain amount “ on a bill of exchange, still due and unpaid," without stating the bill to be "wholly due and unpaid."

Purke, J., was of opinion that the allegation was not sufficient, as the bill might be due and unpaid, if any portion of it was still unpaid, even to an ainount less than that for which a defendant might be held to bail. The present rule must therefore be made absolute. Rule absolute. Roberts v. Pilkington, H. T. 1834. K. B. P. C.

FORM OF AFFIDAVIT.-DESCRIPTION OF DEPO

NENT. RULES OF HIL. TERM, 2 W. 4. Where it is not necessary to give the de

scription of a deponent in an affidavit, pursuant to the Rule of Hilary Term, 2 W. 4.

On shewing cause against a rule for setting aside proceedings for irregularity, an objection was taken to the affidavit of the defendant on which the motion was founded, on the ground that it did not state the addition of the deponent, as was required by 1 Reg. Gen. H.T. 2 W. 4, s. 5.-the words of which were, addition of every person making an affidavit shall be inserted therein." The words of this rule were general, and therefore must apply to all persons who made affidavits.

"the

Purke, J., was of opinion that the rule in question did not apply to the case of a defendant making an affidavit, because his addition must be supposed to be known to the plaintiff.

ADMISSION OF ATTORNEY.-DISCONTINUANCE He referred to the case of Poole v. Pembrey

TO PRACTISE.

Where an attorney may be re-admitted without payment of fine or arrears of duty.

and wife, 1 Dowl. Prae. Rep. 693, in which the Court of Exchequer came to a similar decision.

Rule absolute. Jackson v. Chard, H. T. K. B. P. C.

On application to readmit an attorney without 1834. payment of fine or arrears of duty, it appeared on the affidavit in support of the motion that the applicant had been regularly admitted, but had discontinued to practise on his own ac

Doubts on the Limitutions of Actions, and Suits relating to Real Property.

389

DOUBTS ON THE LIMITATION OF this present session of parliament, or within
ACTIONS AND SUITS RELATING twenty years next after any other title of entry
TO REAL PROPERTY.
accrued."

To the Editor of the Legal Observer. Sir,

It is enacted in the statute Westminster second, Edward the 1st, de donis conditional bus (1285), in gifts in tail the donor's will shall be observed. Second, "Wherefore our Lord the King, perceiving how necessary and expedient it should be to provide remedy in the aforesaid cases, hath ordained that the will of the giver, according to the form in the deed of gift manifestly expressed, shall be from henceforth observed; so that he to whom the land was given under such condition shall have no power to alien the land so given; but that it shall remain unto the issue of them to whom it was given, or his heirs, if issue fail (whereas there is no issue at all), or if any issue be, and fail by death, or heir of the body of such issue failing.”

This statute was made in the reign of a prince who, from the great number and excellence of his laws, has justly acquired the title of the English Justinian. It is therefore highly probable that he was induced by some motives unknown to modern times, to give his assent to a law which, by allowing the nobility to entail their estates,a made it impossible to diminish the property of the great families, and at the same time left them all means of increase and acquisition.

An important question here presents itself, and one upon which but little information is to be met with. The question alluded to is, Whether each and every succeeding heir or he brings it within the period allowed by this issue in tail may bring his formedon, provided statute; or whether, if a preceding tenant in tail who has a right of action, neglects to bring his formedon within the period mentioned in this statute-whether, in such a case, his laches are a bar to each succeeding heir in tail as well as to himself? The answer to this question, of course, depends upon the meaning of the statute 21 James 1. c. 16. § 1.

In order to come to a more correct conclu

serve,

sion in this inquiry, it will be proper to obde donis, it has always been held, that each and that ever since the passing of the statute title distinct from the estate or title of the every succeeding tenant in tail has an estate or preceding one, because each succeeding tenant in tail is held to derive his title, not from the and although the succeeding tenant in tail may preceding tenant in tail, but from the donor; derive his title through the preceding one, still he is held to take no estate or interest from him, but per formam doni. In a certain sense, therefore, every tenant in tail is to be regarded of the 1st section of the statute 21 James 1. as a kind of purchaser. The 2d and 3d clauses c. 16, must be clearly construed, with reference to the doctrine just noticed.

It is, however, observable, that the words of Limitation of Actions and Suits relating to By the act of 3 & 4 W. 4. c. 27, "for the this statute, by which the alienation of an es- Real Property, and for simplifying the Remetate tail is prohibited, only extend to the ori- dies for trying the Rights thereto," (24th July, ginal donee, and not to his issue. Nec habeant 1833), in the 36th clause, it is enacted," that illi, quibus tenementum sic fuerit datum, potes-writs of formedon in descender, in remainder, tatum alienandi. But still the prohibition was extended by the Judges to the issue in infini tum; and Broke says the omission of the heirs of the donee in the statute, was a misprision of the clerk.

By the act for Limitation of Actions, and for avoiding of Suits at Law, it is enacted, in the 2d and 3d clauses of the 1st section of the 21st James I. cap. 16. (1623), “And that all writs of formedon in descender, formedon in remainder, and formedon in reverter, of any manors, lands, tenements, or other hereditaments whatsoever, at any time hereafter to be sued or brought by occasion or means of any title or cause hereafter happening, shall be sued and taken within twenty years next after the title and cause of action first descended or fallen, and at no time after the said twenty years; and that no person or persons that now hath any right or title of entry into any manors, lands, tenements, or hereditaments, now held from him or them, shall thereinto enter, but within twenty years next after the end of

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lished after the 31st December, 1834." In or in reverter, and other real actions, are abothe 37th clause it is enacted, "that when on the said 31st day of December, 1834, any person who shall not have a right of entry to any land shall be entitled to maintain any such writ such writ or action may be brought at any time or action as aforesaid in respect of such land, before the 1st day of June, 1835, in case the not been made, notwithstanding the period of same might have been brought if this act had twenty years hereinbefore limited shall have expired."

Now, Sir, this act of the 3 & 4 W. 4. c. 27,

c What construction ought to be put upon the words-" or within twenty years next after any other title of entry accrued'?"

d2 Ves. sen. 634; Suville's case, cited 1 Ves. sen. 224; 1 P. Wms. 721; 3 Rep. 41, B; Co. Litt. 15, B. and note (2); 2 Shep. Touch. by Atherley, 335 *, note (1); 3 Cru. Dig. 2d ed. 481; 1 Bridg. Dig. 615; Brook's Limitation, 134; Pimm v. Goodwin, 2 Merivale's Ab. Tit. Chan. 309; Cottrel v. Cholmondley, Journals of the House of Lords, 23d July, 1832.

390

Selections from Correspondence, No. XLVI.

does not mention one single word that any [fee; for when the purchaser or devisee shall

former law or statutes are to be repealed. Therefore, it is presumed that the statute de donis, and the statute of the 21st James 1. c. 16, are still in force.

Having thus noticed the last two mentioned acts, I shall be glad if the editor can elicit from any of his better informed contributors, an answer to the following points, viz.

1st. Whether the statute 21 James 1. c. 16, §1, admits the statute de donis, 13 Ed. 1., or whether it annuls that statute, and may be considered as a substitute?

2d. Whether the 2d and 3d clauses of the 1st section of the statute 21 James 1. c. 16, allow each and every succeeding tenant in tail male twenty years to make his right of entry upon the lands; remedy by formedon, or ejectment, and not barred by the laches of his father, or any earlier progenitor?

3d. Whether the statute 3 & 4 W. 4. c. 27. (passed 24th July, 1833,) admits the statute 13 Ed. 1. de donis conditionalibus, and also the statute 21 James 1. c. 16. § 1; or whether it annuls both of those statutes, and should be considered as a substitute for them?

FORMEDON.

have a wife living, to whom he was married on
or before the given day, limitations to prevent
dower will be requisite still. Indeed, in order
to preclude the necessity of inquiring, for the
purposes of title, into the fact and time of
marriage, it should seem that the better plan,
in every case, will be to insert the ordinary
uses (superadding the declaration required by
this act, in order to exclude, in all events, the
dower of a wife taken after the 1st of January,
1834), until the lapse of years shall, in the
course of nature, have exhausted the objects
of legislative concern,'
"&c.

You may be sure that I did not hesitate to follow the safer course, pointed out by Mr. Hayes, of inserting the uses as heretofore, and adding the short declaration, for the purpose suggested by him; but I am not yet quite satisfied that this is the most approved method, and would therefore ask you, or some of your correspondents, whether, on the purchase of dowable property, by a person married previously to the 1st of January, 1834, it is necessary to continue the customary limitations, or will the more simple form, in the Dower Act, suffice in this case as in other cases?

W. B.

SELECTIONS

FROM CORRESPONDENCE.
No. XLVI.

DOWER ACT.-LIMITATION CLAUSES.

To the Editor of the Legal Observer.
Sir,

On preparing a draft conveyance of lands to a purchaser married previously to the 1st day of January, 1834, I had some difficulty in determining whether or not to insert the ordinary limitations to prevent dower, in addition to the short declaration; but having at hand two Treatises, lately published, upon the Real Property Acts, I consulted them-with what satisfaction you will readily imagine, from the short extracts I will give you from each.

STAY OF PROCEEDINGS.

To the Editor of the Legal Observer.

Sir,

Permit me to address you on a subject, the importance of which, to the profession, and to the public, needs so little exposition that, I trust, it will be considered a sufficient apology for my intrusion.

The object of my comments is to illustrate the inconsistency of the practice, which allows defendants, on a summons to stay proceedings upon payment of debts and costs, all that time for settlement, which must, by inevitable consequence, elapse, before the plaintiff can try his cause, obtain judgment, and issue execution in the due and ordinary practice of the Courts; but in the interim, all proceedings to be suspended.

Our Legislators and Judges have, latterly, Mr. Stalman, in a note to the 6th section of felt the impropriety of the inactivity of the the act, p. 90, says, "This declaration will ren- law, and have in accordance with their expeder a limitation to uses to bar dower unneces-rience, and with the wishes of the public, issued sary on the purchase of dowable property." a series of enactments, and of rules, all tending Mr. Hayes, in reference to the same subject, greatly to facilitate the progress and terminasays, at p. 152, "The operation of the act is tion of causes in the Courts of Common Law. so far limited by the concluding section, as to I beg to inquire, then, of our learned Judges, leave wholly unaffected the dower (i. e. the upon what ground do they, by sanctioning and rights of all persons in respect of the dower), authorizing the practice I am alluding to, delay of every widow married on or before the 1st plaintiffs sometimes for several months? The of January, 1834, (i. e. every woman married practice occasions delay to plaintiffs by deon or before that day, and being or becoming stroying the very inducement to an early coma widow). This saving clause, which continues promise, in order to avoid the expense of into a large class of wives, the old provision, creasing the magnitude of costs. The defendand to the lawyers, their old devices for evad-ant, doubtless, reposing himself, and making ing it, will have the effect of prolonging the no exertion to settle the action.

practice of inserting limitations to prevent dower in purchase deeds, and in devises of the

M. S.

Selections from Correspondence, No. XLVI.

OFFICIAL ASSIGNEES.

To the Editor of the Legal Observer.
Sir,

LOCAL COURTS.

To the Editor of the Legal Observer.
Sir,

391

The appointment of official assignees under In ably commenting upon the injurious the New Bankruptcy Court Act, has been con- effects resulting from a general introduction sidered by many, competent and entitled to of Local Courts, you have omitted to notice offer an opinion on the subject, decidedly un- what, in my mind, is the great and vital objecnecessary; for one reason, among others, that tion: viz. The total destruction of all unithe assignées elected by the creditors were formity of practice. What would Jeremy fully competent (and if they were not, it was Bentham have said, if he had lived to see the the fault of the parties electing them,) to the time when fifty petty Judges are to be scatduties they had to perform, and in the majority tered over the face of the country,-he, who of cases, executed those duties honestly, and so clearly argued against the administration of with diligence. The creditors' assignees, too, justice by four,-Tot homines, tot sententia," took nothing in the shape of remuneration out-what, then, is to become of the word "Preof the pockets of the creditors. The present cedent?" that axis on which the wheel of law official assignees are paid for their trouble-revolves! What necessity will there be for any to that of course (if the appointment be in the further Reports? which are (to continue the first instance necessary) I do not object. What simile) the spokes of connexion! Will one I do object to is, that they are sometimes un- Court of Appeal suffice? necessarily appointed, and paid for doing nothing.

The importance of this subject commands open and liberal discussion, unbiassed by party feeling; and you, Sir, as the channel of communication, ought liberally to circulate opinions and objections of all sides interested. CAROLUS.

LABOURERS' COTTAGES.—EJECTMENT.

A few weeks before the Bankruptcy Court Act came into operation, I applied, as solicitor to a commission, to the then Commissioners, for the purpose of having a meeting appointed for a final dividend, the assignees having previously declared one dividend; and having realised all the assets, were then in a situation to wind up the estate. As the new act was shortly to take effect, the Commissioners It is a common custom for large farms to wished the matter to stand over; and accord-have cottages on them with gardens attached, ingly, upon the act coming into operation, for the convenience of the labourers on the application for a meeting was made to the farm, and the farmer, when he hires his laCommissioner to whom this commission was bourers, lets them each a cottage at a rent of transferred. Although it was then represented to the Commissioner that the whole of the bankrupt's property had been collected and got in, he thought proper to appoint an official assignee, to whom, upon application for that purpose, the commission and proceedings, together with a cheque for the balance in the hands of the assignees, were sent. Shortly afterwards a meeting for a final dividend was appointed, and the money so paid to the official assignee, and no more, (as no more was, or could by possibility be collected) was divided among the creditors, the official assignee first deducting and being allowed thereout a commission of five per cent. upon the amount so handed to him by the assig; nees! The charge was of course protested against, on the ground that the official assignee had done nothing to warrant it; but the Commissioner allowed it.

Now, I have no objection, and indeed it is highly proper, that persons having an official duty to perform, under this or any other act, should be adequately remunerated for their services; but when a system is lauded, as this has been, for cheapness and economy, it is rather "too bad" that an official assignee should be thus unnecessarily appointed, and 1 thus unnecessarily paid.

G. R. F.

from 17. to 31. a year, payable yearly or quarterly, with an understanding or agreement that the cottager shall continue to occupy as long as he works on the farm, or till the expiration of his hiring. It frequently happens that the farmer and labourer disagree, and either the latter voluntarily withdraws from his employ, or the farmer, for good reasons, turns him away; but the labourer refuses to quit his cottage, which is wanted for the successor in his employment. The legal notice is served, where

necessary,

and he still continues to hold in defiance, but regularly pays his rent.

Will any of your numerous correspondents be kind enough to inform me how the farmer should act, and whether there be any law, short of an ejectment, to obtain possession?

An action of ejectment would in many cases cost as much as the premises are worth; and the labourer having nothing to pay, the expense must fall on the farmer. If there be not already a better means of redress, it would be very desirable, in these law amending times, to pass a legislative enactment empowering magistrates to hear and determine such matters rent does not exceed, say 57. a-year, and to in a summary way, in all such cases where the issue a warrant of possession, in the same way they do now in cases of parish poor-houses. H. C. W.

392

Selections from Correspondence.-The Law of Attorneys, No. XV.

Sir,

LEASE FOR A YEAR.

ed the defendants to commence and prosecute an action for him against one Silvester, for having seized certain sheep and cattle of the plaintiff on a turnpike road in Surrey, and impounded the same, Silvester being at the

such surveyor, and the sheep, &c. being alleged to have been found straying on such road; that it was the duty of the defendants to bring the action within three mouths of the seizure and impounding, and lay the venue in Surrey; but that they, having commenced an action, improperly discontinued the same without the plaintiff's leave, and brought another action,

There appears to exist a universal disinclination to the discussion of any subject purely legal; few will attend to the merits of a question on the alteration in the modes of transfer-time surveyor of the said road, and acting as ring property, and yet there is scarcely any person who has not experienced considerable inconvenience from the present state of the law on this subject. The laws of real property, in their present state, give rise to innumerable suits, which invariably end in a considerable loss to one, and often to both parties; and in addition, unfair purchasers are frequently enabled to avail themselves of difficul-not within three months, and laid the venue in ties which are the consequence of the peculiar Sussex, by reason whereof the plaintiff was nonstate of the law, for the purpose of protracting suited, and had 1087. levied upon him for costs, the time of payment, and are often enabled, &c. Plea, the general issue. At the trial, where the bargain turns out disadvantageous, before Tindal, C. J., at the Spring Assizes to evade the contract. But what I wish to for Surrey, 1832, the facts appeared to be as draw attention to, is the ordinary mode of follows:-The sheep and cattle were taken, as conveyance by lease and release; the lease is above stated, by Silvester, who was surveyor constantly recited in the release: why not of the Horsley and Cuckfield turnpike roads, omit the lease altogether in this mode of con- on the 26th of April, 1828, in Surrey (near the veyance-why still make it necessary to have borders of Sussex), and impounded at Horsley the lease in reality? Enact that every release in the former county. They afterwards espurporting to be grounded on a previous sup-caped; the cows returned home, and the sheep posed lease, should have the same effect and operation as if there had been a lease actually executed, and one deed in two is saved, in nearly every transfer of property; all difficulties respecting the construction of the lease are removed, as well as all chances of its being lost, or being omitted to be prepared or executed, from accident or ignorance. In such a law there can be no difficulty, and yet great convenience will arise by simplifying the evidence of the title. There exists but one objection to this style of improvement-a stamp is imposed on the lease for a year, and taxes are necessary things. To this, however, it may be answered, that the stamp may be put upon the release. H. W. G.

being re-taken, were again impounded at Worth, in Sussex. The pound keeper there, on the 29th of April, allowed the plaintiff to take them away, on his promise to pay what was claimed for them, and the plaintiff drove them back into Surrey, where, on the same day, Silvester re-took them in a field belonging to the plaintiff, and again put them in the pound. Two persons, named Town and Mercer, assisted him in both seizures. The plaintiff afterwards employed Messrs. Burt, the present defendants, to bring an action for the alleged trespasses, and they sued out a writ against Silvester only, on the 2d of May, 1828. Instructions for a declaration were laid before counsel, indorsed with the words Sussex latitat, and the names of the parties; there was also a reference to the statutes 3 G. 4. c. 126. s. 123, and 4 G. 4. c. 95. s. 75, written upon the instructions by one of the Messrs. Burt. The learned counsel drew the declaration, containing two counts, one for the original taking in the road, the other for the re-taking on the plaintiff's premises; and he returned the declaration (in Nov. 1828,) with the following observations indorsed: "I have confined the declaration to the two occasions on which the prudent to have issued the writ against Silvescattle were taken away. It would have been ter's two associates, and joined them in the action, as they were clearly co-trespassers with anticipated in his favor, and will be likely to him, and their evidence, therefore, must be be extremely prejudicial to the plaintiff.” Messrs. Burt then wrote to the plaintiff, stating that counsel recommended the two accomplices to be joined, and asking what he, the plaintiff, said to it: and it was determined, with the assent of the plaintiff, that the action should be discontinued, and another comCase against attorneys, for negligence.-menced against all the parties. A writ was The declaration stated that the plaintiff retain- accordingly sued out, in Nov. 1828, against

ment.

THE LAW OF ATTORNEYS.
No. XV.

RESPONSIBILITY FOR NEGLIGENCE.

WHERE reasonable doubt exists, an attorney will not be held liable for an error in judg Pitt v. Yalden, 4 Burr. 2061. And where the construction of a statute is doubtful, and only established by decisions long subsequent to it, a mistake made by an attorney acting on it will not be actionable. Buikie v. Chandless, 3 Camp. 17. These principles were acted on in the following case, the circumstances of which are as follows:

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