The Legal Observer. SATURDAY, APRIL 16, 1836. "Quod magis ad NOS Pertinet, et nescire malum est, agitamus. HORAT. ON LORD LYNDHURST's BILL FOR | existing kinds of deeds, although any of them may still be adopted as the mode of transferring property. But most probably the words and portions peculiarly relating to each will gradually be disused, and a A BILL has lately been introduced into the simple DEED OF TRANSFER will be adopted; House of Lords by Lord Lyndhurst, for as, if the intention to transfer clearly apsimplifying the transfer of property, which pear on the face of the instrument, we apwe printed in our last number. It is near-prehend that this will be sufficient to effect ly similar to a bill which did not proceed the purpose intended. further than a second reading in the House of Commons in 1834, and which was introduced by Mr.Philpotts; and we presume that both bills have the concurrence of the Real Property Commissioners, as some of the provisions follow out the suggestions contained in their Third Report. The Bill of Lord Lyndhurst, if it passes, which it probably will, will have no very extensive operation on the present system of the transfer of property, but will affect several minor matters familiar to the conveyancer, and is, on the whole, a useful measure. Its first object is to endeavour to introduce one uniform mode for the transfer of property. At present, as our readers are well aware, there are several assurances more or less in use,-as a feoffment, with livery of seisin; a bargain and sale; a covenant to stand seised; and, the most common, a lease and release. It is proposed to render unnecessary the peculiar ceremonies and effects belonging to each of these kinds of deeds,-as livery of seisin, enrolment, and the prior lease for a year, and to enact that every conveyance shall take effect as if it had been made by lease and release. If the Bill become law, there will be an end of the peculiar operation of the As we are fully of opinion that it is equally for the benefit of the profession as of the public, to facilitate the transfer of property as much as possible, and to abolish all technical ceremonies, not essential to the actual operation of the deed, we think the proposed change, on both these grounds, has long been called for, and will be found generally advantageous. The conveyancer may in future, if he pleases, drop all the modal distinctions of deeds, and merely direct his attention to render the instrument the evidence of the intention of the parties. Henceforth the magical effect of certain words, such as of the words "grant,” exchange," and the secret virtue of useless ceremonies, such as indenting a deed, will cease to exist. Another object of the Bill is, to enable some descriptions of property to be legally transferred, which hitherto could only be conveyed in equity or barred by estoppel. All contingent and executory interests whatsoever, whether in real or personal property, may, if the bill pass, be effectually conveyed from party to party; but this will not extend to enable any heir or next of kin to dispose of their expectancies. While the bill endeavours to remove all doubts respecting the useless ceremonies relating to deeds, it enforces every essen 2 H 458 On the Ecclesiastical Courts Bill. tial act. Thus it renders signing, as well as | sealing and attestation, necessary to the validity of all deeds (except when made by a corporation), although no particular form of attestation will be necessary. Another object of the bill is, to abrogate certain rules of law, which, although they have been long established, and cannot be unsettled by Courts of Law, yet are frequently productive of mischief, and operate against the intentions of parties. Thus it has long been held, that the release from a rent out of any part of the land charged therewith, releases the whole land; and that a condition or covenant to assign or underlet, or do any other act without license, will be wholly released or determined by a licence to do one such act. It is proposed by the present measure to alter those rules of law, which stand on purely technical grounds, and to enact, that acts of this kind shall merely operate according to the expressed intention of the parties. There are several minor provisions, for which we refer our readers to the bill; and for the further reasons for the measure, we recommend the perusal of the Third Report of the Real Property Commissioners on Tenures. ON THE ECCLESIASTICAL COURTS BILL. HAVING in our last Number (p. 441) considered the Ecclesiastical Courts' Bill, with reference, 1st, to the Administration of Assets, and, 2dly, the Administration Bond, we now proceed to the other parts of the Bill. 3d. THE PRIVILEGES OF, AND REGULATIONS CONCERNING, PROCTORS. tors, who have no established rule to restrict or govern their charges; nor can any judge or officer tax their bills without their consent. Solicitors and attorneys, on the other hand, can maintain no action till one month after the formal delivery of a signed bill, within which time it may be taxed as of course. After that time, taxation is within the discretion, and frequently ordered by the Judges. The solicitor must pay the costs of taxation if more than a sixth part of his bill be deducted. The two bodies being thus circumstanced, the bill in question enacts (s. 18), that all persons intitled to act as Proctors in the Ecclesiastical Courts at Doctors' Commons, shall be intitled to act as Proctors in the Court of Probate, without admission. And (by s. 27) all persons, not being attorneys or solicitors, admitted and exclusively practising as proctors in any Ecclesiastical Court in England or Wales, may, within one year, be admitted proctors of the Court of Probate. By s. 12, reciting that it was expedient the powers of the registrars, with respect to taxation of bills, should be extended, in certain cases, to bills of costs between proctors and their clients, it is proposed to enact, that upon the application of a party chargeable by the bill of any proctor, or upon the application of the said proctor, the judge shall refer the bill to the registrar to tax and settle, who may proceed, after notice, ex parte, and shall give a certificate, under his hand, of the amount of such bill, which certificate shall be conclusive evidence in all Courts of Law and Equity, of the amount of such bill. The proctors of Doctors' Commons are, no doubt, a very respectable body; but it seems difficult to account for the partiality of these clauses. So far as regards ProThe proctors, say the Ecclesiastical Com-bates of Wills and Administrations, and missioners, discharge duties similar to those suits respecting the validity of Wills, this of solicitors and attorneys, yet the regu-bill proposes to transfer the whole of the lations as to each are widely different. The constitution of this body is, in truth, essentially exclusive. The Thirty-four Senior Proctors of the Court of Arches only can have articled clerks; and none even of this limited number is at liberty to take a second clerk till the first have served five years out of seven, for which he must be articled. business of the Ecclesiastical Courts of England and Wales to Doctors' Commons, and to transfer, also, a large proportion of the business of the Courts of Equity in the Administration of Assets. Thus, an immense accession of business must necessarily result. If the benefit or convenience of the public be consulted, then, instead of diverting The 10 Geo. 4, c. 53, which requires so large a proportion of business into narthe fees of the officers of Ecclesiastical row channels, creating, in effect, a monoCourts to be regulated, and a table of poly of business in little more than one fees to be framed, expressly excepts proc-hundred individuals, it would seem more On the Ecclesiastical Courts Bill. advisable to increase the number of practisers, by the admission of all the proctors duly admitted of the abolished Courts, and by the admission of solicitors, so far, at least, as regards the suits for Administration of Assets. If the Ecclesiastical Courts were of opinion that the duties of proctors were similar to those of solicitors before this bill, the similitude will not be lessened by the transfer of business at present confined in practice, to Courts of Equity. 459 certificate final, should be qualified, namely, in case of no appeal to the Court within a limited time, and that the taxation have been at the instance of the party. It is reasonable that the party choosing the jurisdiction should be bound by it; but the proctor should not be at liberty to elect the taxing officer for judge, and, still less, in such case to proceed ex parte. 4th. THE POWERS OF THE NEW COURT AS A COURT OF PROBATE. The proctors of Doctors' Commons are, The establishment of one Central Court, it seems, to practise in the New Court with suitable powers and proper limitawithout admission, but the proctors of other tions, may probably be of considerable Courts are to be put to the trouble and ex- public advantage, and remedy many of the pense of a formal admission, and are re-evils and inconveniences arising from the quired to make application within a year. jurisdiction of numerous Ecclesiastical Why should this distinction be made? All Courts. legally admitted proctors should at once be allowed to practise, or subjected to the like formal admission, and under the same restrictions. The singular exception of all proctors who are also "solicitors," must be a mistake. It would be too absurd to say that any individual is less fit to act as a proctor, because by his education and habits he is likely to have more experience and skill, especially so far as the transferred business of a Court of Equity is concerned. The public have a great interest in the question. Proctors are less accustomed to general business than solicitors,-are seldom entrusted with the management of estates, or any of the many involved transactions arising out of trade and commerce. Solicitors are not only much engaged in these matters, but are employed often for a series of years by families, and conversant in their affairs. How, in such cases, can it be expected the proctor, probably an entire stranger, can conduct a suit, either for trial of an issue, or for administering the property, so satisfactorily as the solicitor, who is acquainted with all the facts, and the parties. But be this as it may, what valid reason can exist for putting the proctor on a different footing from the solicitor, in respect to his bill of costs? Why should he not deliver his bill signed, and wait a month, to enable his client to tax it if he shall see fit? and why should not he, as well as the solicitor, be subject to the costs of taxation if a sixth part of his bill be deducted? If these regulations are improper, they should be repealed as to solicitors; or, if wholesome, applied to both. That part of the clause which makes the The Real Property Commissioners were of opinion that the contentious jurisdiction (as it is called), or, in other words, the power to decide upon the validity of Wills, might, with advantage, be transferred to the Courts of Equity. But whether this power shall be exercised by Courts of Equity, or this New Court, it is of equal importance that one of the recommendations of the Ecclesiastical Commissioners should be strictly attended to. These Commissioners recommend, "that in all cases, the validity of Wills shall be tried by viva voce evidence and a jury, where any party interested may desire it, or the judge, without such application, shall think fit.” The Real Property Commissioners observe, "To the mode of trial in the Spiritual Courts, by written depositions, very serious objections exist. There are, we think, no cases in which the advantage afforded by the personal examination and cross-examination of witnesses in open court, are more strongly required, than upon trials to ascertain the validity of wills." But by the 57th section of the bill, it is proposed to enact, that the Court of Probate shall have power, if it shall think fit so to do, to direct a trial by jury on any question of fact. Thus leaving the matter wholly to the discretion of the Judge. This appears to be objectionable on several grounds. It may be sufficient to observe, that pleadings must be filed, and written depositions taken, before the Judge can have documents whereon to form a judgment as to the facts to be submitted to a jury, which must cause delay and considerable needless expense. The heir at law 460 On the Ecclesiastical Courts Bill.- Points on the Law relating to Inns. in a suit in equity is intitled to demand an | and under such regulations as the Court issue as of course. The legal right can shall think fit. only be divested by the judgment of a court of law, or the verdict of a jury. There seems no reason for any distinction between the heir as to real, and the next of kin, as to personal estate, nor for giving greater power as to granting or withholding an issue, to the Judge of the New Court in the one case, than is vested in the Lord Chancellor in the other. With respect to granting probate or administration in common form, a committee The expense of copies made for the Diocesan Courts will be considerable, and in most instances useless. In all cases of prerogative probates no such expense at present is incurred; nor has inconvenience resulted, so far as we have heard, from the omission. Why then should a new, expensive, and in most instances useless practice, be introduced? TO INNS. of the House of Lords have made a report POINTS ON THE LAW RELATING upon some of the objections made to the bill; but with great deference, we doubt whether their Lordships' plan will not have the effect of increasing the expense without much lessening the inconvenience to the public. As the bill now stands, a commission must issue from Doctors' Commons, to swear the executor or administrator. This appears to be a needless expense, which their Lordships propose to remedy by the appointment of Surrogates, to which we cannot imagine any possible objection. Ir has long been established, that an innkeeper is bound to receive and entertain all travellers, their horses and goods, until his house is filled; and although he has removed his sign, yet, if he continue to conduct his house as formerly, and hold himself forth as keeping an inn, it will be the same. The traveller may either bring his action against the innkeeper, or prefer an indictment; but it has been laid down by some text writers as essenIt is further proposed that the will shall retial to maintaining either action or indictment, main in the Surrogate's hands fourteen days that the traveller should tender a fair remufor inspection, after which it is to be trans-neration for his accommodation. However, mitted to London for probate. And copies it will appear from the following case that of all wills of persons dying within a dio- this tender need not be made under all circese, are to be sent to the registrar to be cumstances. Mr. Justice Coleridge's judgkept for inspection. ment was as follows, which will sufficiently explain the facts of the case :— One great evil existing at present is, that the simple process of lodging a will in proper custody, and obtaining a copy under seal (and a probate is no more, for the authority of the executor is under the will), should be attended with so much expense. Now that a new Court is to be constituted, this cause of complaint should be removed; but in all events care should be taken not to increase it. The facts in this case do not appear to be much in dispute, and though I do not recollect to have ever heard of such an indictment being tried before, the law applicable to this innkeeper who refuses to receive a guest, he case is this,—that an indictment lies against an having at the time room in his house, and either the price of a guest's entertainment being tendered to him, or such circumstances occurring as will dispense with that tender. This law is founded in good sense. The innkeeper is not to select his guests. He has no right to say to one, you shall come into my inn, and to another, you shall not; as every one coming and conducting himself in a proper manner, has a right to be received; and for this purpose, innkeepers are a sort of public servants, they having, in return, a kind of privilege of entertaining travellers, and supplying them with what they want. It is said, in the present case, that Mr. Williams, the prosecutor, conducted himself improperly, and therefore ought not to have been adinitted When the oath is administered by a Surrogate, why (there being neither caveat nor apparent objection) should he not be at liberty also, at the expiration of fourteen days, to deliver out a copy under seal, called a Probate, sending at the same time the original documents to London? What is gained by affixing the seal to such a copy in London? The real advantage to be gained is in having one central and secure place for the custody of wills, and for inspection of their contents. This is the first important point; the second is the expense. Probably every advantage might be gain-v. ed by enabling the Court of Probate to appoint Surrogates with power to grant probate and administration in such cases Hawk. Ab. by Curwood, Vol. 1, p. 714; Willcock's Law of Inns, 48. c Rex v. Ivens, 7 Car. & P. 213. Points on the Law relating to Inns. - A new Attempt to Establish Local Courts. 461 of the night was the time, of all others, at which the traveller most required to be received into an inn. I think, therefore, that if the traveller conducts himself properly, the innkeeper is bound to admit him, at whatever hour of the night he may arrive. The only other question in this case, is, whether the defendant's inn was full. There is no distinct evidence on the part of the prosecution that it was not; but I think the conduct of the parties shews that the inn was not full; because, if it had been, there could have been no use in the landlady asking the prosecutor his name, and saying, that if he would tell it, she would ring for one of the servants." Verdict-Guilty. Park, J., sentenced the defendant to pay a fine of 20s. into the house of the defendant. If a person came to an inn drunk, or behaved in an indecent or improper manner, I am of opinion that the innkeeper is not bound to receive him. You will consider whether Mr. Williams did so behave here. It is next said, that he came to the inn at a late hour of the night, when probably the family were gone to bed. Have we not all knocked at inn doors at late hours of the night, and after the family have retired to rest, not for the purpose of annoyance, but to get the people up? In this case it further appears, that the wife of the defendant has a conversation with the prosecutor, in which she insists on knowing his name and abode. I think that an innkeeper has no right to insist on knowing those particulars; and certainly you and I would think an innkeeper very impertinent who asked either the one or the other of any of us. However, the As the innkeeper is obliged to furnish all prosecutor gives his name and residence; and who apply, with lodging and food, he has a supposing that he did add the words," and be privilege beyond others for the recovery of his damned to you," is that a sufficient reason for bill. On this account, he may detain the keeping a man out of an inn who has travelled till midnight? I think that the prosecutor goods, and even the person of his guest, until was not guilty of such misconduct as would the amount of the bill is paid. And this lien entitle the defendant to shut him out of his exists for board, lodging, and wine, supplied house. It has been strongly objected against to the guest by the guest's order, whatever the prosecutor by Mr. Godson, that he had may be the amount, provided the guest be been travelling on a Sunday. To make that possessed of his reason, and not an infant. argument of any avail, it must be contended that travelling on a Sunday is illegal. It is Therefore, the sheriff, under a writ of fieri not so, although it is what ought to be avoided fucias against the guest, can only take the whenever it can be. Indeed, there is one guest's goods, subject to the lien of the landthing which shows that travelling on a Sunday lord for such his bill, and not merely subject is not illegal, which is, that in many places to a lien for a reasonable quantity of wines, you pay additional toll at the turnpikes if you &c. only. And the landlord has a lien for pass through them on a Sunday, by which the Legislature plainly contemplates travelling on money lent to his guest, if it was agreed bea Sunday as a thing not illegal. I do not en-tween them at the time of the loans, that the courage travelling on Sundays, but still it is guest's goods should be a security for the sums not illegal. With respect to the non-tender of lent.e But the landlord must furnish the parmoney by the prosecutor, it is now a custom ticular items of his charge. so universal with innkeepers, to trust that a person will pay before he leaves an inn, that it cannot be necessary for a guest to tender money before he goes into an inn; indeed, in A NEW ATTEMPT TO ESTABLISH the present case, no objection was made that LOCAL COURTS. Mr. Williams did not make a tender; and they tion of the Legislature to centralize the Courts of Justice, and establish Boards in the Metropolis for the Management of all Public Affairs, it is rather singular that an effort should now be made, in the shape of Private Bills, to extend the jurisdiction of existing Local Courts. It being impossible to carry the general measure, it is now sought to accomplish it by piece-meal. did not even insinuate that they had any suspi- AFTER the Government have distinctly ancion that he could not pay for whatever enter-nounced the abandonment of the plan of tainment might be furnished to him. I think, Local Courts, and after the manifest intentherefore, that that cannot be set up as a defence. It however remains for me next to consider the case with respect to the hour of the night at which Mr. Williams applied for admission; and the opinion which I have formed is, that the lateness of the hour is no excuse to the defendant for refusing to receive the prosecutor into his inn. Why are inns established? For the reception of travellers, who are often very far distant from their own homes. Now, at what time is it most essential that travellers should not be denied admission into inns? I should say, when they are benighted, and when, from any casualty, or from the badness of the roads, they arrive at an inn at a very late hour. Indeed, in former times, when the roads were much worse, and were much infested with robbers, a late hour In the last Session of Parliament, a d York v. Grindstone, Salk. 388; Newton v. Trigg, 1 Show. 268. e Proctor v. Nicholson, 7 C. & P. 67. f 11 & 12 Will. 3, c. 15, s. 2; 9 Geo. 4, c. 61, s. 19. |