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Review: Wordsworth's Rules of Court.

485

not sufficient for the subsequent entries, one | Chitty's Pl., 5 ed,, 356–630; Steph. Pl., 2 ed., or more rolls may be added, which are called | 324; Tidd's Prac., 9 ed., 647.” riders, with references at the bottom of the

preceding roll. In the Exchequer, the entries are made by the attorneys, formerly by the clerks in Court. Tidd's Prac. 9 ed., 730."

On the 17th Rule, as to paying money into Court, we find the following com

ment:

The last note which we shall extract re

lates to the operation of the plea of general issue non assumpsit.

"In most of the usual actions, there is an

appropriate plea, fixed by ancient usage, as the proper method of traversing the declaration, in cases where the defendant means to deny the whole or the principal part of its allega tions. This form of plea, or traverse, is called the general issue in that action; and it appears to be so called, because the issue that it tenders, involving the whole declaration, or the prin cipal part of it, is of a more general and comprehensive kind than that usually tendered by a common traverse.

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"The practice of bringing money into Court is said to have been first introduced in the reign of Car. 2, at the time when Kelyng was Chief Justice, to avoid the hazard and difficulty of pleading a tender. And it is allowed in cases where an action is brought upon contract, for the recovery of a debt, which is either certain, or capable of being ascertained by mere computation, without leaving any sort of discretion to be exercised by the jury. 2 Bur. 1120. In these cases, where the dispute is not whether any thing, but how much, is due to the plaintiff, the defendant may have leave to bring into Court any sum of money he thinks fit, and the Court will make a rule, that unless the plaintiff accept of it, with costs, in dis-dent that, when the issue is thus tendered in charge of the action, it shall be struck out of the declaration, and paid out of Court to the plaintiff or his attorney; and the plaintiff, upon his trial, shall not be permitted to give evidence for the sum brought in. Tidd's Prac. 9 ed. 619.

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For those cases in which money might, or might not, be paid into Court, consult Birke v. Trippet, 1 Wms. Saund. 5 ed., 33a; Tidd's Prac. 9 ed., 619; Archb. Pr. K. B. 199, 2 ed. But now, under 3 & 4 W. 4 c. 42. § 21, it may be done in all personal actions (except actions for assault and battery, false imprisonment, libel, slander, malicious arrest or prosecution, criminal conversation, or debauching plaintiff's daughter or servant).

"There is said to be no precedent, where there are several defendants, for one to pay inoney into Court. 2 Bl. Rep. 1030.

"As supposed valid tenders are often disproved on the trial, the safest course, in cases of the least doubt, is to pay the money into Court, and not to plead the tender, though, in that case, the defendant will have to bear the costs to the time of such payment. I Chitty's G. P. L., 509. But if a defendant bring money into Court, upon some of the counts, and the plaintiff take it out, the latter is only entitled to the costs of those counts. 4 T. R. 579; 2 Taunt. 266.

A very important effect attends the adoption of the general issue, viz. that by tendering the issue at the declaration, and thus closing the process of the pleading at so early a stage, it throws out of use, wherever it occurs, a great many rules of pleading, applying exclusively to the remoter allegations. For it is evi

the plea, the whole doctrine relating to pleadings in confession and avoidance, replications, rejoinders, &c. is superseded. At the same time, the general issue is of very frequent occurrence in pleading, and it has, therefore, on the whole, the effect of narrowing very considerably the application of the greater and more subtle part of the science. Steph. Plead. 2 ed. 186, 190.

"In debt on specialty, and in covenant, the general issue, non est factum, denies that the deed mentioned in the declaration is the deed of the defendant. But if the defendant's case consist of any thing but a denial of the execution of such deed as alleged, or some fact showing its absolute invalidity, the plea of non est factum will be improper. Steph. Plead. 2 ed. 191; and see Murray v. Earl of Stair, 2 B. & C. 82; Chitty's Plead. 5 ed. 518, 521.

"In debt on simple contract, the general issues alleges, that he does not owe the sum of money,' &c. which, it is evident, is adapted to any kind of defence that tends to deny an existing debt. Sheph. Plead. 43, 194. But under this plea, defendant cannot give in evidence a tender, nor (without notice) a set-off; nor (in an action for rent on indenture), that the plaintiff had nothing in the tenements; nor (in debt, qui tam) a former recovery against him for the same cause by another person. Tidd's Prac.

the plaintiff' Steph. Pl. 46, 194.

“In the Common Pleas, according to seve-8 ed. 700. ral recent decisions, where the defendant, "In detinue, the general issue alleges, that after action brought, and before declaration, he does not detain the said goods in the said offers to pay the debt and costs, and the plain-declaration specified;' viz. certain goods of tiff refuses to receive it, the Court will permit the defendant to pay the debt into Court, with the costs of the action up to the time of his offer only; and if the plaintiff take the money out of the Court, he will be compelled to pay the costs of the application, and all costs in the action subsequent to the offer. Tidd's Prac. 9 ed. 623.

"As to pleading tender, generally, see

"In trespass, the general issue, not guilty, evidently amounts to a denial of the trespasses alleged, and no more.

"In assumpsit, the declaration states that the defendant, upon a certain consideration therein set forth, made a certain promise to the plaintiff. The general issue in this action states, that the defendant did not promise

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486

The Property Lawyer, No. XXVIII.

and undertake in manner and form,' &c. Al-issue. It appeared that the plaintiff rented a though formerly otherwise, the defendant, in house at Pentonville of the defendant, as tenant all actions of assumpsit, under the general from year to year; and that, at about eleven issue, may not only contend that no promise o'clock on the night of the 13th of July, 1833, was made, or shew facts impeaching the vali- the defendant, seeing the plaintiff's son go into dity of the promise, but, with some few excep- the house and leave the key in the door, took tions, may prove any matter of defence what-possession of the key, and kept the plaintiff soever which tends to destroy his debt or out of the house, alleging that he took the liability. But he cannot give in evidence a goods as a distress for rent. The plaintiff had, tender, bankruptcy of defendunt, the statute of in the month of March 1833, sent the defendlimitations, a discharge under the insolvent act, ant a written notice to quit, signed by her; but nor, in some cases, a defence under the Court that notice did not expire with the year of the of Conscience Acts. Nor is a set-off evidence, tenancy, and had not been acted on by the deunder non assumpsit, unless notice of set-off fendant. be given with the plea. Steph. Pl. 50, 197; Chitty's Pl. 1 ed. 473.

Verdict for the plaintiff-damages 50l. Aldenburgh v. Peaple, 6 C. & P. 212.

Parke, J. (in summing up).—The landlord might, if he had chosen, have treated this ir"In trespass on the case in general, the de-regular notice to quit as a surrender; as a term claration sets forth specifically the circum- of this kind may be surrendered by a note in stances which form the subject of complaint. writing. But he has not done so. With reSteph. Pl. 51, 52. The general issue, not spect to the taking of the goods, that cannot guilty, is a mere traverse, or denial of the facts be justified as for a distress; because no one so alleged. Here a relaxation has taken place, has a right to make a distress after dark. similar to that which prevails in assumpsit; for under this plea, a defendant is permitted not only to contest the truth of the declaration, but, with certain exceptions, to prove any matter of defence that tends to shew that the [AT the suggestion of many subscribers,we inplaintiff has no right of action, though such matters be in confession and avoidance of the tend to devote more space to the department declaration, as a release, satisfaction, &c. of our work comprising the Law of Property But, in an action for libel, or words of slander, and Conveyancing; and, for facility of referhe cannot give in evidence the truth of the

charges, but must plead it specially; nor re-ence, it may be desirable to arrange the letters taking on fresh pursuit, in an action for an of Correspondents on those subjects under the escape; nor in any action on the case, the present head. With this view, we insert the statute of limitations. 1 Wms. Saund. 63 n. 6, 5 ed.; Chitty's Pl. 536, 5 ed."

On the whole, we think, this little book has been carefully compiled, and will be useful to the practitioner, carrying the information on the subjects it comprises down to the most recent period.

THE PROPERTY LAWYER.
No. XXVIII.

THE STATUTE OF FRAUDS.

By the Statute of Frauds, 29 Car. 2, c. 3, s. 3, it is enacted, "that no leases, either of freeholds or terms of years, or any uncertain interest of or in any messuage, &c. shall be surrendered, unless it be by deed or note in writing, signed by the party so surrendering the same, or their agents thereunto lawfully authorized by writing, or by act and operation of law. The following case has lately occurred under this section.

Trespass for taking the plaintiff's goods, with a count for an expulsion. Plea, General

following communications; and assure, in particular, our provincial friends, that we shall accommodate them to the utmost of our power.]

DOWER.

To the Editor of the Legal Observer.
Sir,

In your last Number, the question is discussed, whether the dower of a woman married on or before the 1st of Jan. 1834, in relation to lands purchased after that day, may be barred by a declaration of the husband under the Dower Act. It clearly cannot be so barred. The 14th section has reference to the time of marriage, and not to the time of the right accruing. The question has, indeed, been started in practice, and is discussed in the Advertisement to the Rules and Statutes, printed as a Supplement to Hayes' Introduction; but that writer concludes that the 14th section saves the rights of women married on or before the 1st Jan. 1834, in respect to all the husband's lands, whether acquired on or before or after that day. This construction does not, however, rest on any individual opinion. Mr. Preston, Mr. Brodie, in short, all the most eminent conveyancers, agree in thinking that the Dower Act leaves women, married on or before the 1st Jan. 1834, exactly where it found them; and they act upon this exposition as a matter beyond controversy. As to such women, the old law remains in

The Property Lawyer, No. XXVIII.

full force for all purposes. It does not seem probable that the question will be seriously agitated in a court of judicature. It may be considered as decided by the opinion and practice of the leading members of the Profession. With respect to the propriety of conveying to the old uses to prevent dower, when it is considered that the power of appointment is always convenient, and that the uses shut out all questions and inquiries without (if a compendious form be adopted,) adding more than half a dozen lines to the conveyance, it will probably be thought that the practice of retaining the uses is not only justifiable but expedient,-indeed these uses occasion so little expence and inconvenience, that their total abolition would scarcely be felt an improve

ment.

Another point on which conveyancers are equally well agreed is, that any married woman may extinguish her title to dower by a deed, acknowledged according to the Fine and Recovery Act.

As the result, too, of an enquiry among those whose opinions are entitled to most attention upon points of this nature, and by whose practice, indeed, such points must in a great measure be determined, it may be added, that the question so much agitated among solicitors, namely, whether the new statute for the limitation of actions and suits, as between adverse claimants, operates as an act for the limitation of abstracts and titles, as between vendor and purchaser, has never been a moot point among conveyancers, who adhere, and have adhered steadily to the old rule of practice; while they fully admit the salutary effect of both the Fine and Recovery Act, and the Statute of Limitation, in curing certain particular defects of title.

South Square, Grays' Inn.

Sir,

DOWER.

B.

487

to the dower of any widow who shall have been
or shall be married on or before the 1st of Jan
uary 1834; for, says he (I vary his expressions,
but keep to what I take to be his meaning), the
last section of the Dower Act does not mean
the right of a woman who, during coverture,
has only an inceptive, contingent right to dow-
er, but a woman who has become a widow, and
whose right to dower has therefore become
complete and vested. Now, I really find it
impossible to yield assent to this opinion; and
sure I am, if the last section was not meant to
save the rights of wives surviving the 31st of
December 1833, but only the rights of women
who had become or should become widows
before that time, a more inaccurate clause in
terms was never framed; for, wherefore is the
mind of the reader carried to the time of the
marriage, as it is by these words: "who shall
have been or shall be married on or before the
1st of January 1834," if this clause was meant
to apply to women only that were already or
should be widows before the 1st of January
1834? Surely, if J + had drawn the last section
of the Dower Act, and had meant that it should
control the 6th section, as regards women who
had already or should become widows before
the 1st of January 1834, but should not control
that section as regards women who should be-
come widows on or after that day, the language
he would use would be something like this:-
"And be it further enacted, that this act shall
not extend to the dower of any woman who
shall have become, or who shall become a wi-
dow on or before the 1st day of January 1834;"
and then the 6th clause would have been left
in full operation as to women who should re-
main covert after that time, and afterwards
become widows.

The true reading of these clauses together appears to me to be briefly this. Where a husband, upon taking a conveyance subsequent to the 31st of December 1833, shall declare that his widow shall not be entitled to dower, she will not be entitled to dower, unless the marriage took place on or before the 1st of January 1834; but if the marriage took place on or before that day, she will be entitled to dower, notwithstanding he has declared she shall not.

A., married before January 1834, purchases land after that time, and a conveyance is made to him in fee, and a declaration is added, pur- Your readers, and "A Practitioner,” (p. suant to the 6th section of the Dower Act, 442) in particular, will observe that the mis"that his widow shall not be entitled to dow-chief of this construction, if it should be the er." Will A.'s wife, notwithstanding this declaration, be entitled to dower? No, says Jt, in a late Number of the Legal Observer, p. 417, for although it is provided by the last section of the Dower Act, that the act shall not extend to the dower of a widow who shall have been married on or before the 1st day of January, 1834,' this can only apply to rights of dower which had actually accrued on or before that day, and can never mean to include such rights as might possibly come to them at any future time; or, in other words, as I understand him, the enactment in the 6th section, which gives power to the husband by his declaration to prevent his widow from being entitled to dower, is not controlled by the last section, which says that the 6th section shall not extend

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true construction, is not confined to the question" of the propriety of conveying lands to uses to har dower;" for if the opinion of those who differ from J↑ be the right opinion, then in every case (for the last section of the Dower Act has a restraining power over every clause to which it has any application at all) where a man, married before the 1st of January 1834, has taken a legal estate of inheritance by descent, devise, or purchase, he cannot discharge his land from dower, unless he can do so by a deed of disposition under the Fine and Recovery Act (vide the 3d and 77th sections); and the mischief will be found so great, that parliament cannot long withhold a remedy.

F. W.

488

The Property Lawyer, No. XXVIII.

DOUBTS ON THE DOWER ACT CONTINUED.

my

Sir,

INVESTIGATION OF TITLES..

The remarks of other correspondents have

Sir, I think it rather hard, that after having elicited, that until June 1835 the length of ab"curtailed me of my fair proportions," and ad-stracts will continue as usual, and that after monished me not to "bestow any more of that time the period of forty years will be subtediousness upon you," you should give inser-stituted for that of sixty, but that in such cases tion to a charge that I had "stolen the learned in which it is now necessary to go further back lecturer's thunder." If F. W. will turn to than sixty years for the commencement of the Legal Observer for November 9th, Vol. a title, it will in like manner be necessary, 7. p. 32, he will find acknowledged the reafter June 1835, to go further back than forty ceipt of my letter, which was inserted at p. 45, years. (November 16th,) and which refers to a former letter on the same subject subsequently inserted at p. 80. (November 30th,) whereas, the notice of Mr. Wilde's lecture was not inserted till November 23d, p. 63. When that lecture was delivered I do not know. I did not hear it, nor did it come to my knowledge until I saw it noticed in your pages. Although gra tified to find from your work, that I was of the better opinion "in Westminster Hall," I certainly had no knowledge of that opinion until you mentioned it.

Having said thus much in my own defence, perhaps you will permit me shortly to answer F. W.'s three questions, referring him to my

three former letters.

The point to which I now wish to invite attention is this: what alteration does the new act make in the investigation of that part of the title, shewn by the abstract, which is anterior to twenty years?

The great difficulties which arise in conveyancing practice are not so often connected with the question, whether the vendor is liable or not to be deprived of his estate by a real action, as with a variety of minor questions, equitable as well as legal, the effect and import

ance of which are uncertain, and which lead to troublesome and expensive enquiries, particularly where they arise in the early part of the title. Now to what extent does the new act provide for the removal of these difficulties?

For instance, let us suppose a vendor to delength, and to evidence the last twenty-years liver an abstract shewing a title of sufficient of that title with all the particularity which the ingenuity of the purchaser's counsel shall require. Let us suppose also that the early deeds do not disclose any one of the cases in which a remedy is reserved by the act to be exercised after twenty years. Can an unwilling purchaser require the vendor to do more? If the

1st. I adopt F. W.'s reading-but what then? My point is, that there is something in the subject" treated on, to wit, Dower, supposing that subject to be treated on in the 77th section of the Fines and Recoveries Act, repugnant to the construction of the word *Estate" contended for ; in other words, that the insertion of the different meanings raises the repugnancy, which at once obliterates those different meanings. 2nd, I answer yes,' as regards the sub-early title discloses legacies charged on the ject matter of every clause in both acts which relates to Dower; that is, supposing any clause in the Fines and Recoveries Act to relate to Dower, which is what I deny.

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estate, or an equity of redemption not released, will it be sufficient to say, in answer to objections on these grounds, that by the act such equitable rights are extinguished, no interest appearing to have been paid, and no acknowledgment made to the mortgagor? Again, if

we are tormented for evidence that a trustee, whose executor assigned a term more than twenty years ago, survived his co-trustee, in whom the term had been previously vested jointly with himself, and that his will was duly proved, may we answer conclusively that the evidence is rendered unnecessary? May we refuse to produce the title to lands given in exchange more than twenty years ago, and to obtain covenants for production, and attested copies, of the title deeds to such exchanged

3rd, I do not think "the question is narrowed to one of no practical importance." If there be "repugnance," the necessary consequence of it is, that there is no enactment in the Fines and Recoveries Act regarding Dower; and as the Dower Act does not enable parties to bar the dower of women married on or before the 1st. of January last, what is to be done tr practically" in such cases? I do not say there is anything repugnant either in the "mode of accomplishing the thing," or in the thing to be accomplished;" the repugnance appears to me to be in "the one thing needful in order to accomplish the thing;" viz. the obtaining, or not, the consent of the wife; and 1. In short, may a vendor insist that his title is cannot conceive two enactments more in "op-comprised substantially in the last twentyposition" to one another than that the consent years of the abstract, and that the earlier abof the wife shall be necessary, and that the constract is furnished only to shew in a general sent of the wife shall not be necessary. In con- way, that the purchaser will not be in danger of clusion, I am quite ready to admit the utter in- a real action by a party under disability, or utility of the Fines and Recoveries Act, except will the crotchets of conveyancers be still apwhose right is reserved to him by the act? or to the conveyancers and to the large landed proprietors, whom it will save the payment of plicable to the whole of the abstract, notwiththe King's Fine on alienation at every. C. very fresh standing the new limitation of twenty-years? settlement of their estates. Explanation on these practical points will oblige, A SUBSCRIBER.

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DEDUCTION OF TITLE.

The Property Lawyer.- New Bills in Parliament.

STATUTE LIMITATION, 3 & 4 W. 4. c. 27.

It seems clear that abstracts of title must continue to shew a sixty years title at least, that the purchaser may see that no reversion, or legal disability, descent cast, discontinuance, or warranty (being exceptions to the general rule in § 2) affects the title, (for a reversioner has a right of entry within twenty years after his reversion falls into possession, § 5). Now I put this case. A., in 1760, sells and conveys to B. in fee. In 1800, C. (as only son and heir of B. who leaves no other child, but leaves one brother,) sells and conveys to D., who, in 1836, shall contract to sell to E. There is no fraud in any party. Upon inquiry it shall be discovered that B.'s marriage was void, and his son illegitimate. D., from 1800, has had possession, adverse to B.'s brother, depriving him of his right of entry. I contend, that the only object of deducing a sixty years' title is, to shew the purchaser that the title is not subject to any of the exceptions to the general rule established by the 2d section of the act; viz." that no person shall make an entry, or bring an action, but within twenty years next after his right shall have first accrued," and that the illegitimacy of the son is, under this act, no valid objection to the title; for the brother is deprived of his entry and action (§ 2), and his right is by the statute extinguished (§ 34). Is not this so?

"Psede" (p. 328) is manifestly in error, in supposing "forty years' uninterrupted posses sion" will, under this statute, bar all claim. He has overlooked the right of the reversioner under § 5.

Sir,

TITHES.

I. O. U.

The statute 2 and 3 W. 4, c. 100, relates to moduses and compositions, and to claims of exemption from tithes, by which statute all corporations and persons are bound.

By the subsequent statute of 3 and 4 W. 4, c. 27. The word "Land" is in that act to include "Tithes" other than tithes belonging to a spiritual or eleemosynary corporation sole. And the word "Rent" is to include all periodical sums of money charged on or payable out of any land, except moduses or compositions belonging to a spiritual or eleemosynary corporation sole.

Hence it is to be inferred that the statute 2 and 3 W. 4, c. 100, is virtually repealed, except in so far as it relates to the persons and things excepted out of the 3 and 4 W. 4, c. 27. If such be not the case, these statutes are to me inexplicable.

If it should be asserted that tithes, moduses, and compositions belonging to spiritual and eleemosynary corporations sole are exempted from the operation of the Limitation Act, because they were provided for by the Modus Act,

it

489

inay be answered that that statute extends to all persons and corporations whether spiritual or temporal, and provides no more for spiritual corporations sole, than for such as are aggregate.

It does not however appear to me that the statute last mentioned includes tithes in the sense in which that word is used in the Limitation Act, where it means tithes when no dispute exists as to their lawful payability, but applies to those cases only in which they are received adversely, and not to claims of modus or exemption, which are expressly provided for by the Modus Act.

If then moduses and compositions belonging to spiritual or eleemosynary corporations sole be excepted out of the Limitation Act, for the reasons before suggested, it may be safely inferred that moduses and compositions belonging to similar corporations aggregate, are comprised in that act, and that consequently as to them the 3 and 4 W.4, c. 27, is a virtual repeal of the 2 and 3 W. 4, C. 100.

A question then arises as to tithes belonging to spiritual or eleemosynary corporations sole which are exempted from the operation of the Limitation Act. If this exemption was made on the ground that such tithes were previously provided for by the Modus Act, then, as that statute also extended to all corporations aggregate, it is to be inferred that as to them, the Limitation Act is a virtual repeal of the Modus Act, and therefore that tithes belonging to spiritual and eleemosynary corporations aggregate, are included in the operation of the 3 and 4 W. 4, c. 27. If such be not the case, tithes belonging to spiritual and eleemosynary corporations sole remain as before the passing of these statutes; i. e. without any Ilmitation whatever as to their re

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