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not mention one single word that any [fee; for when the purchaser or devisee shall former law or statutes are to be repealed.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. Mr. Stalman, in a note to the 6th section of the act, p. 90, says, "This declaration will render a limitation to uses to bar dower unnecessary on the purchase of dowable property." Mr. Hayes, in reference to the same subject, says, at p. 152, "The operation of the act is so far limited by the concluding section, as to leave wholly unaffected the dower (i. e. the rights of all persons in respect of the dower), of every widow married on or before the 1st of January, 1834, (i. e. every woman married on or before that day, and being or becoming a widow). This saving clause, which continues to a large class of wives, the old provision, and to the lawyers, their old devices for evading it, will have the effect of prolonging the practice of inserting limitations to prevent dower in purchase deeds, and in devises of the 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, 1 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, felt the impropriety of the inactivity of the law, and have in accordance with their experience, and with the wishes of the public, issued a series of enactments, and of rules, all tending greatly to facilitate the progress and termination of causes in the Courts of Common Law. I beg to inquire, then, of our learned Judges, upon what ground do they, by sanctioning and authorizing the practice I am alluding to, delay plaintiff's sometimes for several months? The practice occasions delay to plaintiffs_by_destroying the very inducement to an early compromise, in order to avoid the expense of increasing the magnitude of costs. The defendant, doubtless, reposing himself, and making no exertion to settle the action. M. S. In ably commenting upon the injurious effects resulting from a general introduction of Local Courts, you have omitted to notice what, in my mind, is the great and vital objection: viz. The total destruction of all uniformity of practice. What would Jeremy Bentham have said, if he had lived to see the time when fifty petty Judges are to be scattered over the face of the country,-he, who so clearly argued against the administration of justice by four, Tot homines, tot sententia," The appointment of official assignees under the New Bankruptcy Court Act, has been considered by many, competent and entitled to offer an opinion on the subject, decidedly unnecessary; for one reason, among others, that the assignees elected by the creditors were fully competent (and if they were not, it was the fault of the parties electing them,) to the duties they had to perform, and in the majority of cases, executed those duties honestly, and with diligence. The creditors' assignees, too, took nothing in the shape of remuneration out-what, then, is to become of the word " Preof the pockets of the creditors. The present official assignees are paid for their troubleto that of course (if the appointment be in the first instance necessary) I do not object. What I do object to is, that they are sometimes unnecessarily appointed, and paid for doing nothing. cedent?" that axis on which the wheel of law revolves! What necessity will there be for any further Reports? which are (to continue the simile) the spokes of connexion! Will one Court of Appeal suffice? 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 wished the inatter to stand over; and accord-have cottages on them with gardens attached, It is a common custom for large farms to 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 transferred. Although it was then represented from 17. to 37. a year, payable yearly or quarbourers, lets them each a cottage at a rent of to the Commissioner that the whole of the bankrupt's property had been collected and terly, with an understanding or agreement that got in, he thought proper to appoint an the cottager shall continue to occupy as long official assignee, to whom, upon application of his hiring. It frequently happens that the as he works on the farm, or till the expiration for that purpose, the commission and pro- farmer and labourer disagree, and either the ceedings, together with a cheque for the latter voluntarily withdraws from his employ, balance in the hands of the assignees, were sent. Shortly afterwards a meeting for a final or the farmer, for good reasons, turns him dividend was appointed, and the money so away; but the labourer refuses to quit his cotpaid to the official assignee, and no more, (as tage, which is wanted for the successor in his no more was, or could by possibility be col-employment. The legal notice is served, where lected) was divided among the creditors, the necessary, official assignee first deducting and being allowed thereout a commission of five per cent. upon the amount so handed to him by the assignees! 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 thus unnecessarily paid. G. R. F. and he still continues to hold in defiance, but regularly pays his rent. be kind enough to inform me how the farmer Will any of your numerous correspondents 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 months 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 exe- | cuted, 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. ment. THE LAW OF ATTORNEYS. RESPONSIBILITY FOR NEGLIGENCE. 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 him, and their evidence, therefore, must be anticipated in his favor, and will be likely to 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 act-be extremely prejudicial to the plaintiff." ing on it will not be actionable. Baikie v. Chandless, 3 Camp. 17. These principles were acted on in the following case, the circumstances of which are as follows: 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 The Law of Attorneys, No. XV. 393 There are cases where officers have been held Silvester, Town, and Mercer, and the declara- but not always, given to clauses so worded. tion was amended by counsel, the names of the two latter parties being introduced. When the cause was at issue, the trustees of the turnpike roads made an offer of compromise, which the defendants advised the plaintiff to accept, being then doubtful as to the result of a trial; but the plaintiff refused, not being satisfied with the terms. A case was afterwards laid before a special pleader, with a copy of the declaration; the question proposed being, whether or not the defendants could avail themselves of the protection of the general turnpike act. The gentleman consulted gave as his opinion that, in respect of the latter seizure, the defendants could not avail themselves of that protection either as to the venue or the limitation of the action. On the trial at Lewes, at the Summer Assizes 1829, it was objected that the action was commenced too late, and the venue improper; and the learned Judge who tried the cause, directed a nonsuit on both points, giving leave to move that the nonsuit should be set aside; which motion was made in the following term without success, and the defendants had execution for their icosts. Upon these facts, Tindal, C. J. was of opinion, that the case was one in which Messrs. Burt, the defendants, might reasonably doubt whether that which had been done by the surveyor, was done in pursuance of the statute; and he directed a nonsuit, with liberty to move to enter a verdict for 1087., the amount of costs levied. Denman, C. J. said, I think there was in this case no proof of gross negligence. I enter tain the greatest doubt, whether the second action was not properly brought. The first clearly was; but the defendants were induced to discontinue that by the very reasonable doubt which counsel suggested to them, whether certain parties who had not then been made defendants, ought not to have been joined: the omission of them, however, in the first instance, was clearly not an act of gross negligence. As to the second action, it occurs to me that, under the circumstances, the defendant Silvester was not protected by the statute; and if that were so, the action was rightly brought. I think, then, that here was, at all events, no case of culpable negligence. There is a difficulty in saying, if there is any case of negligence, that it shall not be submitted to a jury; but here I think it could not have gone to them. Littledale, J.-It has been taken for granted by the plaintiff's counsel, that the defendant in the former action was protected by the 3 G. 4. c. 126. s. 147, and 4 G. 4. c. 95. ss. 75 and 88. But, as upon the second occasion, the sheep were not taken upon the highway, according to the 75th section of the latter statute, it is clear that he would not have been within the letter of the 3 G. 4. c. 126. s. 147, as a person sued "for any thing done in pursuance of that act;" though he might have been entitled to the benefit of that liberal construction which the Courts have sometimes, Kemp v. Burt and another, 2 B. & Ad. 424; 1 N. & M. 262. In Floyd v. Nangle, 3 Atk. 568, 1 Dick. 129, it was held that where a solicitor has been negligent in managing a client's business, a Court of Equity can grant an attachment against him; and if he be guilty of gross negligence, he will have to pay the costs. Fawkes v. Pratt, 1 P. W. 593, 6th edit., and cases in note (y). However, in the following case, it will be seen, that the Vice Chancellor thought he had no jurisdiction in such matters. By an order made in this cause, on an undertaking to speed, it was ordered that plaintiff should go to commission in the vacation following, give rules to pass publication in the next term, and set down his cause for hearing in the term after, and in default thereof, that his bill should be dismissed. The rules to pass publication not having been given within the time prescribed, the bill was dismissed with costs. The Vice Chancellor and the Lord Chancellor were successively moved, on behalf of the plaintiff, to restore the cause, but in both instances the motion was refused with costs. The plaintiff then presented a petition, which was intituled both in the cause and in the matter of the solicitor, imputing the dismissal of the bill to the negligence of his solicitor, in not taking in due time the proper step in the cause, after the undertaking to speed had been given, and praying that the solicitor might be ordered to repay him the costs on the dismissal of the bill, and also to pay the costs of the motions, when they should be taxed. On the hearing of the petition, two questions were made: 1st, whether the solicitor was chargeable with negligence; 2d, if he was, Title of the Bill. whether this Court had jurisdiction to make Registration of Births, him responsible for it. Sir E. Sugden and Mr. Knight, in arguing the second question for the petitioner, said that this was not a case of mere mistake, but of gross negligence and inattention on the part of the solicitor; and that there could be no doubt that, in such a case, the Court had the jurisdiction contended for. Floyd v. Nangle, 3 Atk. 568; Fawkes v. Pratt, 1 P. W. 592. Mr. Pepys, Mr. Girdlestone, and Mr. Jumes Russell, for the solicitor, said that there was no instance in which the jurisdiction in question had been exercised, either by Courts of Equity or by Courts of Law; that Lewis v. Nungle did not apply; and, besides, that that case contained an obiter dictum only, and that no order was made in it. Barker v. Butter, 2 Sir W. Black. 780; Ex parte Jones, Chitty's Rep. 651. Marriages, and County Registration of Deeds. Dissenters' Marriages. By whom brought in. Mr. Aglionby. Mr. Caley. Lord John Russell. Mr. Ewart. BILLS WAITING FOR SECOND READING. The Vice Chancellor, after detailing the par- County Coroners. ticulars of the case, said that he had no doubt the solicitor had been guilty of negligence, but Liberty of the Press. Mr. O'Connell. Mr. Shaw Lefevre. IN COMMITTEE. The Vice Chancellor (12th Nov.) said that if the jurisdiction existed, there must have been various instances in which it had been exercised; that cases of gross negligence on the part of solicitors had frequently come be- and undergo material alterations. fore him, but he had never known an instance in which the jurisdiction had been exercised; that there had been very great neglect in the present case, and there was some semblance of authority for the petition; and that, therefore, he should make no order. Investment of Bank- Mr. Brougham. ruptcy Funds. This Bill, we understand, will be deferred, Frankland v. Lucas, 4 Sim. 586. See also Order 36, April 3, 1828; and the Chancery Practice, 75. SEWERS. A notice of motion has been given for a Committee to inquire into the laws respecting Sewers, and to suggest changes in the Laws as well as in the Board of Commissioners. GOVERNMENT OF PARISHES. A notice of motion has been given by Colonel Evans, for the 18th instant, of a Bill for the better Government of Parishes in England and Wales. LAW OF FORFEITURE. A Bill to alter and amend the Law of Forfeiture, as regards the Personal Property of convicted Felons, has been ordered to be brought in by Mr. Rotch. GENERAL REGISTER OF DEEDS. This Bill has been ordered to be brought in by Mr. Brougham and the Lord Advo of Wills. These Bills are suspended until the return of the new Attorney General to Parliament. cate. |