The Legal Observer, Or, Journal of Jurisprudence

volume of our work and of the legal year, we do not know that we can perform a better service to our readers than by reviewing the important changes made in the law in the last session of Parliament, stating when they came, or come into operation, and enabling all those whom they may concern to see at a glance how far the march of innovation has proceeded. A Government authority has declared that more has been done for our jurisprudence during the first session of the reformed Parliament, than during the whole of the preceding century;"a and without echoing this sentiment, we may safely say, that enough has been done to render it necessary for the practitioner to look well about him before he takes a single step, more particularly when the present year shall have completed its course. Το enable him to see his way, we shall now arrange the various acts passed in the last session, altering the law; and shall add references to our own work, where the acts have been given in its pages, as in most instances their provisions have been there explained. For those few acts not already

noticed, we must refer our readers to our future numbers.

First, then, in importance, come the Real Property Acts:-The Limitation of

6 L. O. 261. The act abolishing Fines and Recoveries, 3 & 4 W. 4. c. 74; 6 L. O. 433. The Dower Act, 3 & 4 W. 4. c. 105; 6 L. O. 449: and the Inheritance Act, 3 & 4 W. 4. c. 106; 6 L. O. 465. All these acts come into operation on the 1st of January, 1834, and they make many important changes in the present practice of conveyancing.

to the Common Law.-The Law AmendNext in importance are the acts relating ment Act, 3 & 4 W. 4. c. 42; given 6 L. O. 306; which came into operation on the 1st of June last. The Act for amending the Uniformity of Process Act, 3 & 4 W. 4. c. 67; 6 L O. 389; which came into the Act for enabling the Crown to change operation on the 28th of August last: and the Act for enabling the Crown to change 4. c. 71; 6 L. O. 371; which also came the place for holding the Assizes, 3 & 4 W. into operation on the 28th of August last.

of Chancery; which are the Chancery ReNext come the acts relating to the Court gulation Act, 3 & 4 W. 4. c. 94; 6 L. O. 401; making most important alterations in the practice of the Court of Chancery. This act, as far as it relates to the office of the but in all other matters it takes effect from Clerk of Affidavits, is at present in force the end of the present Michaelmas term, or

;

on the 26th of November. The other act re

lating to the Court of Chancery, is the 3 & 4 W. 4. c. 84; 6L. O. 450; and it provides ficers of that Court, and came into operation for the discharge of the duties of certain ofthe 28th of August last.

Next in importance is the Privy Council

a The Reformed Ministry and the Reform- Appeals Act, 3 & 4 W. 4. c. 41; 6 L. O. ed Parliament, p. 56.

NO. CLXXI.

337; which may be said to call into exA

Review of the Measures of the last Session.

istence a new Court, with important powers | 450; all of which are now in operation, and jurisdiction. This act came into oper- are also worthy of the attention of every ation on the 1st of June, 1833. careful practitioner.

Thus have we enumerated those statutes which will all more or less bear on the future practice of professional men; and it appears, therefore, that scarcely a portion of our juridical system has remained un

The Lunatic Commissions Act, 3 & 4 W. 4, c. 36; 6 L. O. 273; materially alters the practice in lunacy. This act came into operation on the 24th of July, 1833; and connected with it is c. 64, for amending the Act for the Treatment of In-touched, whether for good or whether for sane Persons, post, p. 7.

The Bankruptcy Court has also suffered material alterations, under the 3 & 4 W. 4. c. 47; stated post, p. 6. It came into operation on the 28th of August last.

The Criminal Law has also been altered by the 3 & 4 W. 4. c. 44; 6 L. O. 499; which substitutes transportation for death in the punishment of certain crimes, and which comes into operation on the 1st of January, 1834.

The office of Sheriffs, and the Exchequer Office, are dealt with by the 3 & 4 W. 4. c. 99; 6 L. O. 473, 484; which act came into operation on the 29th of August, 1833. By the Quakers and Moravian Act, 3 & 4 W. 4. c. 49, and the Separatists' Act, 3 & 4 W. 4. c. 82, an alteration is made in the law of Evidence, by allowing the affirmations of these sectarians to be taken in all cases instead of an oath. Both these acts are now in operation.

The Payment of Debts Act, 3 & 4 W. 4. c. 104; 6 L. O. 483; is a useful measure, also now in force.

The Dramatic Property Act, 3 & 4 W. 4. c. 15; 6 L. O. 211, protects the rights of dramatic authors. It has been in force since the 10th of June, 1833.

evil, experience can only shew; but it is clear that it is the duty of lawyers to bear with them a knowledge of the alterations which have been made; and it is with this object that we have devoted so large a space to them, and have thought it advisable to collect the most important acts in a separate form, and accompany them by the "Commentaries of various learned gentlemen, particularly acquainted with their provi

sions.

The alterations we have enumerated are the work of one session,- of some six months;-the time is approaching for a renewal of the attack. A General Registry; the establishment of Local Courts; the Abolition of Imprisonment for Debt; the various proposals of the various bodies of Law Commissioners, Common Law, Real Property, Ecclesiastical, Admiralty, Poor Law, Corporation, Record, and Criminal, English, Irish, and Scotch, are all to be discussed. We are threatened with a code, with the destruction of the Lord Chancellorship, with the abolition of the ultimate Court of Appeal; a new practice is being created in the Courts of Common Law; another is about to be introduced into the Courts of Equity; and while new forms of pleading are being forged on the anvil of one set of Commissioners, another body,

The Abolition of Slavery Act, 3 & 4 W. 4. c. 73, makes an important alteration in a species of property with which the money-it is hinted, is remodelling the forms for the lending inhabitants of England are nearly as well acquainted as their fellow subjects in the West Indies.

The East India Company Act, 3 & 4 W. 4. c. 85, and the Bank of England Act, 3 & 4 W. 4. c. 98, of great interest to the community at large, are also necessary to be known by the lawyer.

The act allowing Attorneys to officiate as Public Notaries, 3 & 4 W. 4. c. 70; 6 L. O. 422; the act relating to Inclosure Awards, c. 87; 6 L. O. 422; the New Police Act, 3 & 4 W. 4. c. 19; 6 L. O. 267, 313; the Sewers Act, 3 & 4 W. 4. c. 22; 6 L. O. 356, 394; the Turnpike Road Returns Act, 3 & 4 W. 4. c. 8; 6 L. O. 439; and the Parochial Rates Exemption Act, 3 & 4 W. 4. c. 30; 6 L. O.

transfer of property. Every change achieved is but a fulcrum to effect another; the fall of one portion of our legal system weakens that which remains, and lays it open to the fate of that already removed.

This is a state of things to excite anxiety. Let us, however, not despond; but in availing ourselves of the new system opening upon us, endeavour to shew our readiness to submit to all reasonable changes, to assist its operation, and thus, if possible, preserve the main superstructure of our laws.

On the Statute of Limitations, as to Rent.

ON THE STATUTES OF LIMITA-materia ought to be construed together and TION, AS TO RENT. made to correspond, rather than contradict each other.

To the Editor of the Legal Observer.
Sir,

S -n says, that actions of annuity are limited by c. 27. § 42: and this he infers from the construction given in § 1 to the term "rent"; but here I beg leave to differ from him; the words are, "All annuities and periodical sums of money charged upon or payable

In answer to your correspondent Sn, 1 beg to submit the following observations, and hope that they may tend to elucidate the sub-out of any land," or in other words, a rentject, and remove his doubts.

Sn, in the first place, thinks that there is a discrepancy between the limitation of the remedy for recovery of rent (viz. twenty years), provided by 3 & 4 W. 4. c. 27. § 2, and the time limited for the recovery of arrears of rent, under § 42 (viz. six years); but I apprehend this discrepancy will vanish upon rightly understanding the meaning of rent," which is rather the return or service than the specific sum of money due; thus several monies due at several times, if under the same reservation, are the same rent, though different arrears; thus, under § 2, at any time within twenty years after he has been dispossessed (see § 3), a party may distrain or bring an action for the rent of which he was so dispossessed, though not for the arrear or sum which at that time fell due, but only for those arrears which have become due within six years, by § 42.

charge payable annually, or at any other periods; but the action of annuity does not lie for annuities charged upon and payable out of land, but for a yearly payment of a certain sum of money, charging the person of the grantor only; Co. Lit. 144b; though where the grant charges the land as well as the person, an action of annuity is maintainable; Lit. § 219; yet it is only in respect of the personal charge: and therefore where no express contract, there can be no action of annuity Co. Lit. 144 a. And the grantee having elected to charge the person, and such election appearing on record, as commencing an action of annuity, the grant ceases to charge the land. Lit. 219, and Coke on that section. The annuity, therefore, in respect of which an action of annuity lies, is not "an annuity charged upon or payable out of land," and is not comprehended under the term "rent," in c. 27; and thus it apThe second objection of S- n is, that 3 & 4 pears that the action of annuity is not within W 4. c. 27. § 42, and c. 42. § 3, are contradic-any of the Statutes of Limitation. tory; the one proving that no arrear of rent shall be recovered six years after due, the other that an action upon an indenture for rent may be brought within twenty years after the cause of such action.

The following positions, I think, may be taken as the clear result of the three sections alluded to:

1. Where a party having a right has received no rent for twenty years, his remedy for the rent is barred altogether.

2. Where an arrear of rent has been due six years, it cannot be recovered, but the subsequent arrears may, provided the party has received rent within twenty years.

3. Where the rent is due upon an indenture, an action may be maintained on the indenture within twenty years after rent due.

Whilst upon this subject, it may not be out of place to notice a few other points which have occurred to me as remarkable in these statutes.

I think also that these provisions will not be found irreconcileable if attentively considered, nor need we resort to the doctrine of C. M. W. (see p. 479), that the latter enactment virtually repeals the former, pro tanto; though if they were contradictory it clearly would. See Rex v. Middlesex, 2 B. & Ad. 818. Cap. 27, only relating to real property, considers rent as a service issuing out of or a charge upon lands, and the 42d sec. must, therefore, be taken only as referring to the remedies incident to it in that capacity, viz. distress and debt, upon the personal duty of the tenant to pay it: but 1st. The legal remedy for a freehold anthe action upon the indenture is founded upon nuity, devised out of a freehold estate in land, the solemn contract under seal, and is not so is taken away by 3 & 4 W. 4. c. 27. § 36, abomuch an action for the rent, as for the non-lishing real actions; an assise being the only payment of money covenanted to be paid: it is an additional security, and entirely personal, since it does not interfere with or merge the action founded on the duty of the tenant in respect of his occupation and receipt of the profit of the land; debt on a demise being sustainable notwithstanding a lease by indenture, and covenant by the tenant to pay. Nor can I suppose that the Legislature intended to render the security of a deed unavailing, or to place covenants for payment of rent in a different and less advantageous position than other covenants. If this mode of construction be too special, supposing c. 27 stood alone, yet when considered with c. 42, it will, I apprehend, be found correct, since statutes in pari

action heretofore sustainable therefore; Webb v. Jiggs, 4 M. & S. 113; so that the grantee can now have no action therefore, but can only distrain, within twenty years after his title accrues, for six years arrears.

2d. There is a difference between 3 & 4 W. 4. c. 42. § 4, and the corresponding sections in 21 Jac. 1. c. 16, and 4 Ann. c. 16; in the latter statutes imprisonment of the plaintiff being a disability which defers the limitation, but not in the former.

3d. The 7th section of 3 & 4 W. 4. c. 42, not extending to the 4 Ann. c. 16, which renders defendants being beyond the seas a disability in those actions limited by 21 Jac. 1 c. 16; it seems that if a defendant be in Ireland,

4 Defects of the Uniformity of Process Act.-On the Friendly Societies Acts.

Man, Guernsey, Jersey, Alderney, or Sark, at | order the sheriff to bring in the body within the time of an action of assumpsit, &c. accru- the usual number of days, similar to that in ing against him, an action might be commenc- the case of returning a writ; and, as in that ed within six years after his return; see Anon. case, if the sheriff do not comply within the 1 Show. 91, per Holt, C. J.; though if the plain- proper period, let him be liable to an attachtiff be at any of those places it would be other- ment on the first day of the ensuing term.

wise.

These notes may be useful to practitioners, and may perchance meet the eye of some higher power, from whom an alteration may emanate,since there is nothing more perplexing than a diversity in the law, where reason is uniform. D. G. Middle Temple, Oct. 22, 1833.

DEFECTS OF THE UNIFORMITY OF PROCESS ACT.

BODY RULES.-AFFIDAVITS OF DEBT.

To the Editor of the Legal Observer. Sir, THE " Uniformity of Process" Act has undoubtedly effected some benefit, by facilitating the progress of actions in the vacation; but it appears to me not to go far enough.

goes;

Grounded on that act, a Judge, in vacation, has now the power of granting an order to the sheriff to return a writ; and, by the general rule of the Courts, if the sheriff should not obey the order, he would be liable to an attachment on the first day of the succeeding term, notwithstanding he might in the mean time have returned the writ All this is very intelligible and very proper, as far as it but supposing the sheriff did return the writ agreeably to the Judge's order, that the defendant put in his bail and the plaintiff excepted thereto, but that the bail did not ultimately justify, what step, I would ask, is the plaintiff to pursue, if he wishes to proceed against the sheriff? The warning, as it is termed, at the foot of the writ of capias, states that if the defendant omit to put in special bail as required, the plaintiff may proceed against the sheriff, or on the bail-bond; but how can he avail himself of this choice of proceeding? A Judge, in vacation, cannot, I apprehend, grant an order to the sheriff to bring in the body; and if the plaintiff is bound to wait until the next term before he can rule the sheriff, what becomes of the choice of proceeding alluded to?

There is another matter on which I would ask your patient hearing, and which, I think, calls loudly for alteration. I am told that, on a computation, in six out of every ten actions, the defendants are discharged from custody on entering a common appearance, by reason of the insufficiency of the affidavit to hold to bail. I happened to be, one day, waiting in the Judge's room at chambers, when in three actions the defendants were discharged on this ground, in the space of as many minutes. I am willing to admit that, in some cases, this is the result of negligence; but generally it will be found to be owing to conflicting decisions at chambers, and more than all, to a total want of reporting those decisions. There is a class of men who make it their business to search for affidavits, and get the defendants discharged on the ground of insufficiency. Their charge is two guineas, if successful; if otherwise, they receive nothing. This no cure, no pay," system, is a great obstruction to the creditor in recovering a just debt; it increases the expenses of the action; and is, at the same time, not only irksome, but injurious to the honourable practitioner; it ought, at once, to be amended. G. W.

ON THE FRIENDLY SOCIETIES ACTS.

To the Editor of the Legal Observer.
Sir,

Ir gives me unfeigned satisfaction that you have, at the present period, called public attention to the evils which deeply afflict a numerous class of society united in Friendly Societies, the number of which societies, by the last returns to Parliament made a short time since, it appears is about 16,000, probably containing two million persons, united for the laudable objects stated by your correspondent J. W., in your Number for the 31st August last.

In considering the object proposed to be effected by J. W., it appears to me, that the united wisdom of our master minds, in calcuIt may be urged, I know well, that the lating our risks and in coming to mathematiplaintiff is at liberty to take an assignment of cal certainty thereupon is needed: it cannot the bond; but in most cases the practitioner be expected of the humbler portion of the would decline to accept it, particularly in Mid-community to calculate correctly the contindlesex, where the officers are sometimes con-gencies, or the probabilities of sickness, or the tent to run great risks as to bail bonds. There are such things as actions against sheriffs for not taking good bail-bonds, but I fear the plaintiffs rarely, if ever, reap any advantage from them.

I have no wish to make an objection without at the same time pointing out a remedy-it is this:-Let a Judge, in vacation, have power to

duration of human life and also the contingencies arising on the other allowances to which your correspondent has invited public_attention: nay, with profound deference I add, what universal experience proves, that even the magistrates to whom this work has hitherto been committed for the benefit of the societies, professedly do not understand it: there

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The Legal Observer, Or, Journal of Jurisprudence, 7. köide