Selections from Correspondence. of goods or breaking of bulk under the same sec. The 8th sec. concludes thus: "And the master of any ship who shall fail to make such report, or who shall make a false report, shall forfeit the sum of 1007." It is not stated that the penalty of 1007. shall attach in case the master fails to make his report within twentyfour hours; but only generally, "if he fails to make such report.' Now a report, containing all the necessary particulars required by the 8th sec., but not made within twenty-four hours after arrival, is either an illegal report, or it is not. If it be an illegal report, any goods landed are illegally landed, and forfeited under sec. 2. If it be a legal report, penal acts are to be construed strictly, and the master cannot be said to have "failed to make such report" under the 8th sec.; and consequently is not liable to the penalty. The intention of the act probably was, that the master should incur the penalty of 1007. in case he did not make his report within twentyfour hours; but that the validity of the report itself, made after the expiration of the twentyfour hours, should not be affected; and it is presumed, the intention of the act, if clearly shewn, must prevail over the words. The intention of the act, however, does not appear clearly. If, indeed, the intention had been as above stated, the insertion at the end of clause 8, of the words "within twenty-four hours," would have made it very clear. The omission of those words affords an argument that such was not the intention of the act. I shall be glad to receive the opinion of some of your intelligent correspondents on the construction of the act referred to, in the instances mentioned. D. M. DOWER. To the Editor of the Legal Observer. Since I wrote to you on this subject, my attention has been drawn to the 77th section of the 3 & 4 W. 4. c. 74, by a gentleman who contends that, under that section, a woman married on or before the 1st of January, 1834, may bar her dower. That proposition I deny. The material words of the section are, "That it shall be lawful for every married woman to dispose of, release, surrender, or extinguish any estate which she alone, or she and her husband in her right, may have in any lands." As a married woman has no "estate," properly so called, in her husband's lands during his lifetime, resort must be had to the 1st section of the statute to support the construction of the 77th contended for. The material words of the 1st section are, "The word 'estate' shall extend to any interest, charge, lien, or incumbrance in, upon, or affecting lands;" and "Provided always that those words and expressions occurring in this clause to which more than one meaning is to be attached, shall not have the different meanings given to them by this clause in those cases in 45 which there is anything in the subject' or context repugnant to such construction." Now there is nothing in the 77th section confining it to women married on or before the 1st of January, 1834; on the contrary, it must extend to women married after that day. That being so, the statute 3 & 4 W. 4. c. 74 (provided it extend at all to Dower), and the statute 3 & 4 W. 4. c. 105, are in pari materiá, and must be construed together so far as regards the dower of women married after the 1st of January, 1834. 66 66 Now the legislature, in framing the 3 & 4 W. 4. c. 74, must (if they meant it to extend to dower) have meant that a woman married after the 1st of January, 1834, should not be barred of her dower unless by her own deed (§ 77) acknowledged before a Judge, &c. (§ 79), the Judge, &c. examining her apart as to her knowledge of and free consent to the deed (§ 80). Yet the very same legislature, in framing the 3 & 4 W. 4. c. 105. §§ 4, 5, 6, 7, 8, evidently meant that a woman married after the 1st of January, 1834, might be barred of her dower, not only without her free consent, but absolutely without her knowing anything at all about it. Can any two things be more repugnant" to one another than these two constructions which must be put upon the 'subject" treated of in these two statutes (supposing the former statute to treat of dower)? There being therefore something in the " subject," if not in the context, (though I do not admit that there is nothing repugnant in that,) repugnant to the construction contended for of the word "estate," in the 77th section of the 3 & 4 W. 4. c. 74, that word cannot be extended under the 1st section of the statute so as to comprehend the "subject" of dower. I doubt very much, also, whether a married woman can be said to 'have" any interest, charge, lien, or incumbrance upon the lands of her husband in respect of her dower, such interest, lien, charge, lute, but only contingent upon her surviving or incumbrance not being present and absodown in The King v. The Justices of Middlehim. Again, according to the doctrine laid sex, 2 B. & Ad. 818, the Dower Act, 3 & 4 W. 4. c. 105, which received the royal assent on the 29th of August, 1833, must prevail over and repeal the Fines and Recoveries Act, which received such assent on the day before, so far as it is repugnant to it, which it is so tion of the latter statute to relate to dower. far as regards dower, supposing the 77th sec LOCAL COURTS. J. C. To the Editor of the Legal Observer. I find you are preparing for a resistance to any renewal of the Local Courts scheme, in which I wish you success. I have had occasion lately, for the first time in my life, to appear and defend an honest but poor man, in a County Court. He had both legally and morally a good defence; but as I find that the 46 Superior Courts: Lord Chancellor.-Notes of the Week. juries always give a verdict for the plaintiffs, of | to betray his trust and his duty as an officer of course the defence was of no avail. The judge the Court. Mr. Delfonse, however, soon rewho tried the cause, the plaintiff's attorney, tracted the expression of his confidence, and the coroner for the county, who happened to from that time the receiver had no excuse be present, the judge's clerk, and every officer whatsoever for the payments subsequently of the court, down, I believe, to the door- transmitted by him. It was absurd to conkeeper, all say the verdict was wrong, and all tend, that the other plaintiffs would be affectbut the judge's clerk (who knows all the jury-ed by any expression of Mr. Delfonse's confimen and prepares the jury list) were much dence in the solicitor, which was too limited to surprised at it. C. S. be binding on himself even. At all events the receiver was accountable to the Court for the receipt of the rents and profits. [Some particulars are stated by our correspondent which we do not feel ourselves at liberty to publish at present. We will consider, when received, the further statement proposed. ED.] SUPERIOR COURTS. Lord Chancellor's Court. The Lord Chancellor. It would be a dangerous doctrine, indeed, to hold that a receiver appointed expressly to secure the rents and profits of an estate for the benefit of the suitors, might thus pay over the proceeds to a person of his own choice. Receivers are officers of the Court, and they know well, or ought to know, that it is their duty to pay the rents and profits received by them to the AccountantGeneral, or into the Bank of England in his A receiver appointed by the Court to receive name, to the credit of the cause, and also to pass their accounts in the master's office once rents and profits of an estate for the benefit in the year. Neither of the points urged in of suitors in a cause, transmitted a sum of support of this motion is of the least avail to money so received by him to the attorney of induce me to disturb the Vice Chancellor's the suitors, to pay it to the Accountant-order. But as receivers are placed in situations General-the attorney having failed to do so, the receiver is held liable to pay the money into Court. DUTY OF A RECEIVER. This was a suit instituted by annuitants, whose annuity was charged on some mining property belonging to the defendant. A receiver appointed by the Court to receive the rents and profits to secure the due payment of the annuity, transmitted a sum of 2000, so received by him, to the solicitor for the plaintiffs in London, to pay it to the AccountantGeneral The solicitor not having paid in the money, nor being able to make it up, an application was made to the Vice Chancellor, who made an order requiring the receiver to pay in the 20007. within three months. Mr. Pepys and Mr. Elmsly moved to discharge the order, chiefly on two grounds; first, as the receiver did not transmit the money to a stranger or agent of his own, but to the solicitor for the plaintiffs in the suit, he was relieved from responsibility. In the second place, as Mr. Delfonse, the plaintiff, in his letters to the receiver, expressed his perfect confidence in the solicitor, and that the money would be safe if he had the management of it, that plaintiff at least ought not now to be heard to complain of an act encouraged by himself. If he had no right to complain, neither had the co-plaintiffs, who were bound by the act of their co-annuitant reposing his confidence in their common solicitor. If the order could not be wholly discharged, the receiver prayed at least to be heard before the master and settle the accounts. Mr. Agar and Mr. Daniel, in support of the order of the Vice Chancellor, met the application now made with a large number of athidavits and letters, from which they concluded that the confidence expressed by Mr. Delfonse in the solicitor could not warrant the receiver of difficulty sometimes, and entitled to the indulgent consideration of the Court, I shall for that reason only look into the affidavits, and try if I can grant that part of the motion by which this receiver prays for an inquiry before the master. Delfonse and others v. Crawshay, Westminster, Nov. 8th and 9th, 1833. NOTES OF THE WEEK. NEW ORDERS IN CHANCERY.-HEARINGS Since our notice of this subject last week,' we are informed that the Judges of the Court of Chancery, assisted by several learned and practical persons, are engaged in preparing, as expeditiously as possible, the New Orders under the Chancery Regulation Act, 3 & 4 W. 4, cap. 94. In ten days from this date the Act will come into operation, and, consequently, there is not a day to lose. Amongst other subjects, we understand the sections of the Act (13, 14, and 15) relating to the hearing of Interlocutory Matters before the Masters, have occasioned more than usual difficulty. The question appears to be, whether these matters are to come before all the Masters in rotation,-or before one Master,—or a small number of Masters, who may be appointed exclusively to attend to this department of practice. We have had an opportunity of conferring with practitioners of great experience Notes of the Week.-List of London Deputies of Sheriffs. in both branches of the profession, and believe that the following is the substance of their opinion on the question: 1. If these matters are distributed among all the Masters, diversity of practice and decision must arise there will be different views and decisions; one will order what another, under similar circumstances, will refuse. 2. This class of proceedings will not possess public respect and confidence, and appeals will be incessant, as clients will not be satisfied to be refused by one authority what they see another grant. 3. This diversity and unsatisfactoriness of decision will be increased by the difficulty there will be in solicitors, or even a principal clerk, attending ten different Courts, often sitting at once. Orders will be hastily made, the solicitors relying on the appeal to the Court. 4. Appointments for the attendance of counsel will be exceedingly difficult to make or attend, as there will be appointments in other places continually for the same time. 5. The ten Masters sitting separately at their own chambers, will transact the business in private, as no one (even if the office is open to the public,) will attend; whereas one judicial Master would sit publicly, and all his business of the day would be on one list, so that solicitors and counsel could attend regularly in succession. 6. If there be one Master attending to these matters, not only will he acquire experience, and give greater satisfaction, but his principal clerk will become well skilled and experienced in such matters, which would not be the case if the business were dispersed among all the principal clerks, with whom there would arise still further sources of diversity of practice. 7. The experience at Judges' Chambers at Common Law, is in favor of the plan of one Judge. Diversity of decision has been there much complained of, as well as the difficulty of attending three tribunals at once; and plan has been contemplated (and is acted on in vacation already,) of obviating these inconveniences, by one Judge taking the summonses of all the Courts. a 47 10. Diversity of functions in all cases, is highly inconvenient, and it is contrary to all the usual principles of business by which affairs are expedited and admitted to be better performed through division of labor. If one Master took all this branch of business, it would, of course, relieve each of the other Masters of a portion of what now goes to them in exceptions, &c., and this diminution of business in each office, would be supplied by the apportionment among the other Masters of the matters now pending in the Judicial Master's Office. 11. One Master becoming well skilled in these matters, the extent of his assistance to the Court might gradually be increased, so as to form a useful and highly effective officer. 12. At any rate, a limited number of Masters, say two (certainly not exceeding three,) should be selected for this branch of business, and one general list should be formed, which they should take by each sitting on successive days or weeks, so as to have only one Court sitting at a time. LIST OF THE LONDON DEPUTIES OF Counties. Bedfordshire Cheshire Cornwall Cumberland Durham 8. There would be considerable difficulty in Dorsetshire settling a regular and impartial rotation of reference and distribution of bills to the Masters. Books recording the references, and other troublesome machinery, inust be kept, and referred to constantly, in order to trace the causes, and the orders will be kept in ten different places. Essex Gloucestershire Hertfordshire 9. The other business of both Masters and clerks must be greatly broken in upon, if they are continually called off to judicial business. Some of the judicial matters referred will re❘ Hampshire quire the postponement of all other business Particular times must therefore be set apart, Kent on which no other warrants are granted, and this would be often so much lost time, as it would not always be filled up by judicial busiIn like manner, the clerk's time (often ness. Leicestershire of as much importance as the Master's) would Litchfield, city of be necessarily distracted by giving out orders. 48 List of Sheriffs' Deputies. -Answers to Queries. Queries.-Editor's Letter Box. | Mr. Lythgoe, Essex St. Northumberland {Road, Bedford Row. {" { Messrs. H. and C. Berkeley, 3, Lincoln's Inn New Square. Messrs. Holme, Framp- Messrs. Wilson, Bell, and Messrs. Becke and Co., 2, New Inn. Messrs Helder, Clement's Inn. Messrs. Bell and Co. Bow Church Yard. | Ditto. North Wales. RENT.-TRUSTEES LIABILITY.-INSOLVENT. An insolvent assigns leaseholds to a trustee, for the benefit of creditors: he is not able to find a purchaser for them, and they are not productive enough to pay the ground-rent. Is the trustee personally liable for the rent, having already paid rent on account? If the trustee should be able to sell, would the purchaser be entitled to distrain, not only for the rents accruing from the time of his taking possession, but for the arrears due to the trustee, the latter consenting? E. O. In answer to an Inquirer, there appears to be some doubt of the accuracy of the report of what passed in the Lord Chancellor's Court, regarding "A correct List" of the motions undisposed of before the long vacation. We shall make inquiries into the subject. We thank a correspondent at Plymouth for his zeal, and trust he will, on all occasions, continue to refer accurately to the authorities on which he relies. The queries and answers from M. N.; R. C. S; H. R.; F. W. S.; A. L.; and II. S. C., are unavoidably deferred. 66 The letters of " Prior," " Ambulator," and "A Prisoner," arrived too late for the present number. W. B. I. requests us to inquire whether there is any Law Library where law books are lent, and where. The queries on the " fession," shall be inserted. Usages of the Pro The letter of W. shall be considered. We are obliged to defer many communica The rule of H. T. 2 W. 4. § 87, referred to tions, which are in the hands of the printer. The Legal Observer. Vol. VII. SATURDAY, NOVEMBER 23, 1833. No. CLXXIV. DISSERTATIONS ON CONVEYANCING. No. XII. ON THE RULE AGAINST PERPETUITIES. THE general rule for preventing a perpetuity as to real estate, has long been well settled; but a doubt has frequently been entertained as to one portion of it, which a recent case a has now set at rest. The recognised rule on the subject, ever since the year 1719, is, that no person can limit or defer the enjoyment of land for a longer period than a life or lives in being, and twenty-one years beyond the death of the surviving tenant for life; but whether this term must depend on an infancy, or might be a term in gross, has been the disputed point. The cases of Lloyd v. Carew and Marks v. Marks, do not necessarily warrant an inference, that a term of twenty-one years, for which no special or reasonable purpose is assigned, would be allowed. They are only important, as establishing that a life or lives in being is not the limitation; that there are cases in which it may be exceeded, Taylor v. Biddal, 1677, is the first instance, in which so great an excess twenty-one years after a life or lives in being was allowed, and that was a case of infancy. It was a limitation to the heirs of as the body of Robert Wharton, and their heirs, as they should attain the respective ages of twenty-one; there might be an interval, therefore, of twenty-one years between the death of Robert, till which no one could be heir of his body, and the period when such heir should attain twentyone, till which time the estate was not to vest; and that limitation was held good by executory devise. That, however, was a case of infancy, and it was on account of that infancy that the vesting was postponed. This case was followed by, and was the express foundation of the decision in, Stephens v. Stephens,d and is mentioned in the certificate as such. That was a case of infancy also. The executory devise there "to such other son of the body of my daughter Mary Stephens by my son-in-law Thomas Stephens as shall happen to attain his age of twenty-one years, his heirs and assigns for ever:" and the Judges of the Court of King's Bench certified that the devise was good. This also was a case of infancy: it was on account of that infancy that the vesting of the estate was postponed; and though, under that limitation, the vesting of the estate might be delayed for twenty-one years after the deaths of Thomas and Mary Stephens, it did not follow of necessity that it would, and it might vest at a much earlier period. was, These decisions, therefore, do not distinctly or necessarily establish the position, that a term in gross for twenty-one years, without any reference to infancy, after a life or lives in esse, will be good by way of executory d Cas. Temp. Talb. 232. Ꭰ |