Common Law Sittings.-Notes of the Week. Pleas, Demurrers, Causes. 30 | Short Causes and do In the interval after Term, and the First Seal, his Honor the Vice-Chancellor will hear motions at Lincoln's Inn. COMMON LAW SITTINGS. London. of the Rolls Garden. The portion of the Record Office at present intended to be built, will not cost more than 14,000l., which, like the expenses of the Buildings for the other Chancery Records, will come out of the Suitors' Fund. A Bill will be brought in, as soon as Parliament meets, to effect these objects, and also for the better regulation of the Record Offices; and more especially to give access to the Records to literary persons, under certain restrictions, without fee. The salaries of the Chancery Record Keepers and their Clerks, and the expense of repairing the Records and making Calendars, will be charged upon the Chancery Funds exclusively. We have extracted this from the Times, and have ascertained that the statement is substantially correct. We are glad that some progress is likely to be made; but must regret that a Jan. 30 Judges' Hall and Chambers, which are much needed for the convenient despatch of business, are not at present to be included in the plan. The first object, however, was to separate the Record Office from the scheme of a National Gallery (with which it had nothing to do); and other improvements we trust may follow hereafter. . Feb. 3 The Court will sit at eleven o'clock in Middlesex, and at twelve in London, in Term; and in both at half past nine, after Term. Causes untried on the lists for the 13th and 16th, will be taken on the 14th, 15th, 17th, and 18th. None but undefended Causes will be tried on the 29th and 30th Januaay. The intended free access of literary persons to search the Records will be no novelty they might always, on application, have leave to pursue their objects, so far at least as relates to the Records in the Rolls Chapel. We say nothing, however, of the order in which the documents are arranged, or the calendars by which their contents should be readily ascertained. INQUIRY INTO THE LAW OF COSTS. We have not heard of late of the progress made before the Common Law Commissioners, into the Inquiry regarding the Law of Costs. The questions circulated amongst the practitioners were inserted in vol. 6. p. 276, and some communications on the subject will be found in the same volume, at PP. 345, 376. We think that men of extensive practical experience should take the trouble, for their own sakes, and their brethren, to consider the questions, and give their answers to the Commissioners. It would be still better if they previously met and discussed the several points to which their attention has been directed. REAL PROPERTY ACTS. Real Property Acts, passed in the last Session We beg to remind our Readers, that the of Parliament, came into operation on the 1st of the present month. Answers to Queries.-Queries. ANSWERS TO QUERIES. Law of Property and Conveyancing. COPYHOLD MORTGAGES. VOL. VI. P. 464, AND VOL. VII. p. 31. 191 VOL. VI. Such security would be void against creditors, both at law, 13 Ves. 586; 4 East. 372; and in equity, 1 P. W. 768; 4 T. R. 166; 1 Anst. 910; 1 Atk. 105; 2 Ves. 156. And the creditors may refuse to stand to the agreeIf the first mortgage surrender has been duly ment, although under hand and seal; and a presented, but no admission granted there-bill to compel a performance of the agreement upon, then the proper way to make a second would be dismissed; 2 Vern. 71 and 603. But mortgage is by surrender, as until admission it would be different if the creditors were conof the mortgagee, the mortgagor continues tenant to the Lord, 1 Watk. on Cop. 4th edit.,senting to it, 13 Ves. 586; 6 Ves. 300. 147; and the second mortgagee may be admitted upon the surrender to him, but his admission will be liable to be vacated by the subsequent admission of the first mortgagee. Common Law. D. D. PROMISSORY NOTE.-MARRIED WOMAN. VOL. VI. PP. 160 and 462. But if the first mortgagee has been duly admitted, the second mortgage must not be by surrender, (for the mortgagor will have no The property in the note vested in the more than an equity, and of an equity no sur- husband by the delivery to the wife; Barlow v. render can be made. 1 Watk. ut sup., p. 81, Bishop, 1 East. 432; S. C. 3 Esp. 266; and 156), but by way of release. A second sur-being the husband's property, passed to his render would be simply void, except, perhaps, it might be considered as evidence of a contract. Vide Cov.'s. Note to Watk. p. 149. In preparing second mortgages of copyhold estates, it should therefore be ascertained whether the prior mortgagee has been admitted; if he has, the adoption of the mode pointed out by "a Court Holder," in his answer to this Query, p. 31, would be improper; but if no admission has been granted, then I think it would be correct. J. E. creditors. But if the interest of third parties had not been concerned, and the husband had died before any alteration made by him, they would go to his wife. Co. Litt. 351; 3 Mod. 186. D. D. TWENTY YEARS TITLE. P. 123. In this query N. S. does not state by what title A. and the previous possessors entered, or had held possession. The 2d section of 3 & 4 W. 4. c. 27, limits actions for recovery of land to twenty years from the time at which the right of entry first accrued. Supposing the case not to come within the sections in favor of persons under disabilities, two points arise 1st, Has any right of entry accrued? and if so, 2d, When did it accrue? If a lessee has not paid rent, or made any acknowledgment of tenancy for more than twenty years, I conceive the possession of such lessee could not be considered as adverse, under the former law; Doe d. Cook v. Danvers, 7 East, 299; Sug. V. & P. ch. 7. § 5; and such a case would come under the 15th section of 3 & 4 W. 4. c. 27, which enacts that where the possession is not adverse at the time of the passing of the act, the person claiming may, notwithstanding the twenty years shall have expired, make entry or distress, or bring action, within five years after the passing of that act. But even if such should not be the case alluded to by N. S., a reversioner or remainder-man may have a right of entry on his estate coming into possession; and therefore, I think, as N. S. has put the case, it would be impossible to say that A. has a perfect title. G. B. QUERIES. Law of Attorneys. ARTICLES. ATTORNEY.-NOTARY. I should feel particularly obliged if any of your numerous correspondents would give me their opinion on the following query: A. was bound an apprentice to B. for seven years, to serve as a notary, and a few days after was articled to the same person for five years, to serve as an attorney and solicitor. There was a parol agreement with the father at the time, (but no memorandum was made on the occasion,) that the apprentice should be at liberty second indenture vacate the first, as being a to quit at the end of the five years. Does the new agreement entered into between the parties, so that the apprentice (if opposed by his master) may leave at the end of five years; or can the master compel him to serve the seven D. D. years? 192 Queries.-Editor's Letter Box. A. B. was possessed of a piece of freehold land which was devised to him by his father, in these words: "I give and devise all that my piece of freehold land situate, lying, and being, &c. to my dearly beloved son the said A. B. and his heirs for never," instead of the word ever. A. B. has lately died intestate, leaving a son him surviving, who has since seld the property; but the purchaser refuses to complete his purchase on account of the uncertainty of expression in the devise. Will the purchaser be safe in completing his purchase without going before the Court? A CONSTANT READER. Practice. JOINT ACTION. In a joint action against two persons, one was arrested in Trinity vacation, (who immediately afterwards put in and perfected special bail) but no further proceedings have been taken against him, and there is no disposition on the part of the plaintiff either to arrest or serve the other defendant-can the first named defendant take any and what proceedings against the plaintiff to compel him to go on?-the two terms since the arrest have expired without a declaration, or rule for time to declare, but the four months mentioned in the writ have not elapsed since the issuing of the capias against both defendants. Under the old practice the plaintiff must have obtained time to declare as against the defendant who was arrested, until the outlawry or appearance of the other. A SUBSCRIBER. PRACTICE UNDER COUNTRY FIATS IN BANKRUPTCY. By the 6 Geo. 4. c. 16, § 23, it is enacted, that at every meeting under any commission to be executed in the country, wherein any one or more of the Commissioners named may be a barrister or barristers; such barrister or barristers, or as many of them as shall be willing to attend, not exceeding three at each meeting, shall be the acting Commissioner or Commissioners, and shall be entitled to his and their summonses and fees accordingly, in priority to any of the other Commissioners in the said commission named. The profession are not generally aware of the above cited section of the General Bank rupt Act; for though the names of two resident barristers are invariably inserted by the Secretary of Bankrupts in country fiats issued for Nottingham, and several other manufacturing places; still the solicitors causing such fiats to be issued, are in the constant habit of summoning only one of such barristers under each of such fiats. This is in direct opposition to the above section, which is declaratory of the practice as it existed previously to the passing of 6 G. 4. c. 16; see Lord Rosslyn's Order of 12th August, 1800, and 5 Ves. 578; 5 Madd. 462, and 1 Rose 58; and if the omission to summon both barristers, whose names are the Court, would not the solicitors under the always inserted in the fiats, were signified to fiats respectively be dealt with severely, as was done under the old system, when the practice of summoning barristers arose only from an order of the Lord Chancellor, and not out of an act of Parliament? If the Secretary of Bankrupts would take the trouble to give particular notice of this section (23), by fixing a copy thereof in a conspicuous part of his office, or otherwise publicly declare the same to the country solicitors, the evils which arise would perhaps be remedied. A. S. THE EDITOR'S LETTER BOX. au Orders in Chancery, a mistake in the “ We pointed out in our re-print of the New thorized" publication: in the commencement of the 8th order, the words should be " a Bill of Revivor," instead of a Bill or Revivor. We learn that this was the Printer's mistake. In the 9th Order, Commissioners' names instead of name should have been printed. There are also several errors of punctuation: in fact, the original manuscript, like most all other respects, we believe the printed copies legal documents, is without punctuation. In may be relied upon. The letters on the Poor Laws; on the Payment of Debts out of Real Estate; on the Doubts on the Dower Act, and the Fines and Recoveries Acts; and on the Repeal of the Usury Laws, are printed, and will probably appear in the next Number. The Letter on Local Courts shall have our attention before the meeting of Parliament. The Communications of S†, and W. B. I., shall be considered. The List of Books has been received, and will be inserted in our next Supplement. The Queries and Answers of W. H.; J. W. H.; D. D., and J. B. shall have early attention. The Legal Observer. Vol. VII. SATURDAY, JANUARY 11, 1834. No. CLXXXIII, 1 THE DEFENCE OF THE LORD CHANCELLOR. In a former numbera we gave some account of the pamphlet entitled "The Reform Ministry and the Reformed Parliament,' and also of an answer to it, which appeared in the Quarterly Review for October last; and we adverted to these works with the view of giving the character of the present Lord Chancellor, as drawn by two partizans of different factions. The Pamphleteer drew his Lordship and his labours couleur de rose; the Reviewer endeavoured to show that he was blacker than he ever was painted: we endeavoured to act as moderators, and, as we have always done, to give him credit where it was due, and censure in its proper place. It was not to be supposed that the controversy would end here; the declaration had been filed; the plea delivered; and if a replication was not forthcoming, there were no true spirit in the land! Here then we have it, although, as it is averred, by a different hand than a Ante, p. 17. See also p. 33. b A Refutation of the Calumnies against the Lord Chancellor, contained in the last Number of the Quarterly Review, in an Article upon the Pamphlet entitled "The Reform Ministry and the Reformed Parliament." Third Edition. Ridgway. "It is proper to state," says the author, in a note to the first page, "that I have no further knowledge of that pamphlet than is derived from the article in question;" which is rather an equivocal declaration, as it confines the knowledge to the extracts made in the review, which can hardly be meant; as if so, the author would not know what he was in part defending. Be the author of the "Refutation" NO. CLXXXIII, that which wrote the original pamphlet, whose power has either been "snuffed out by the article," and been driven to seek other assistance; or, peradventure, disdains the combat. It is a marvel to us, that instead of one we have not fifty "Refutations ;" and we know not what may now be in the womb of the press: for the present, who he may, he occasionally discloses a knowledge of the private affairs of the Chancellor, which could only be obtained by one closely connected with him. Thus, in alluding to the death of Sir Albert Pell, he says, "the act to establish a Court in Bankruptcy gives authority 'from time to time to supply any vacancy in and a cloud of aspirants and their patrons, the number of the Judges and Commissioners;' many of the latter labourers in the vineyard of reform during a quarter of a century, speedily reminded Lord Brougham that he possessed this power. Had then the object of the Chancellor in establishing the new Bankruptcy Court been the mere acquisition of patronage, here, it must be admitted, was an opportunity of exercising it. If he could find plausible pretexts for the creation of the office, it was not likely that he would be unable to invent some specious excuse for its continuance. The period, too, when the vacancy occurred was tempting. Not only was Parliament not sitting, but it was prorogued until January. No question therefore could be asked on the subject for four months :-and the events of those four months might produce the answer, or render it unnecessary. What then did Lord Brougham do? He adhered to the resolution that he had formed immediately on hearing of Sir Albert Pell's death, and in spite of the entreaties and remonstrances of some of his oldest and staunchest friends and adherents, he refused to appoint again a fourth Bankruptcy Judge:" and many similar proofs of the writer's being completely behind the curtain, may be found throughout the work. N 194 A Defence of the Lord Chancellor. however, we think the one published is | The Reviewer asked, Why did not Lord sufficient; at least until a rejoinder be Brougham provide against the claim of forthcoming. compensation on the part of the new Masters, as Lord Lyndhurst did in the appointment of Welsh Judges? To this it is answered, that the cases are not analogous ; which we do not think is made out very clearly. It is said, moreover, that these clauses did not proceed from the Chancellor, which is, no doubt, very true; but of course he could have prevented their insertion in his own bill. The author divides the charges into heads, and attacks them separately; in some instances, we think, successfully,- in others not so well; and throughout he wants the spirit and cleverness of his adversary. He may say that his facts needed no garnish; but if he wanted them to be as extensively read as the Review, he should have made them a little more palatable. The nomination of Mr. James Brougham to the offices of Clerk of the Patents and Registrar of Affidavits, is first adverted to, and is, we think, satisfactorily explained; and under present circumstances, we are every way disposed to admit the validity of the defence. We do not think that the thorough disinterestedness of the Chancellor about his own salary is so well made out. The author admits that Lord Brougham put the emoluments of the Great Seal at the average of 14,5007. (p. 9, in note,)—a low average, but of course the nearest that could be made. If, therefore, he secured a fixed salary of 14,000l., and an additional 10007. retiring salary, it cannot be said that he did very badly for himself, or that great wrong has been done him. Neither should the author take credit, as he does in p. 5, for the fact that the Chancellor's brother did not claim compensation, which is called an act of unusual moderation." It is obvious that, as a bill had been brought in for abolishing the office before Mr. James Brougham was appointed to it, no claim of compensation could have been raised. The next subject adverted to is the Chancery Regulation Act. The Pamphleteer claimed the whole merit of it for Lord Brougham; the Reviewer did the same for Lord Lyndhurst and Sir Edward Sugden. We stated in our notice that it belonged to neither of them, but to Lord Eldon and the Chancery Commission. The author of the "Refutation" agrees with us, and proves our position at length by a reference to the propositions of the Commissioners; but then he should have admitted that the Pamphleteer and Reviewer were equally incorrect, and not confined his fire to the latter. The New Bankruptcy Court is the next point of difference, and the author of the "Refutation" insists on the merits of the new Commissioners, and the savings which have been effected, and makes out a fair case for the Official Assignees. The Court of Review is less successfully defended. It must be admitted by every body, because it is admitted by the Chancellor himself, -- and we have repeatedly praised him for his candour, to be a failure; and we believe, moreover, that it will not exist, in its present form, for three years longer. The next subject is the transfer of the appointment of the Masters in Chancery from the Chancellor to the Crown. The accusation as to this was, that it was intended to secure the patronage to Lord Brougham on any separation of the political from the judicial functions of the Chancellor; but this the learned Refuter" considers "merits no answer." p. 76. But as the plan for the separation has been repeatedly adverted to by Lord Brougham, as stated at length in the Pamphlet and Refutation, we humbly think it does merit an answer. The Country Commissioners of Bankrupt come next upon the tapis; and here we think the author of the "Refutation" is most successful. It is correctly stated that this patronage is, under the 1 & 2 W. 4. c. 56, in the hands of the Common Law Judges, not of the Chancellor, as stated by the Chancellor himself on the 23d of April last. · "His Lordship might have added, that his moderation in this respect has been strongly condemned by many influential members of his party, and not without some show of reason. The nomination to these new offices presented, The next head is devoted to the comto use the words of the Quarterly, a fine pensation clauses, inserted in the Chan-opening for partizan rewards, particularly as these Local Commissioners are chiefly resident cery Regulation Act, under which the new in the newly created boroughs, and are the Masters, including Mr. William Brougham, kind of men who have the most hold over the are to obtain compensation for the reduc- 101. constituency.' Now it seems that our vetion in the emoluments of their offices. nerable Judges are for the most part more deeply imbued with the tenets of the Tories than with those of their adversaries, and the. d See ante, p. 18. |