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New Statutes effecting Alterations in the Law.
45. Extent of act.
46. Commencement of act.
The following are the title, preamble, and sections of the act:
An Act to facilitate Leases and Sales of Settled
1. The word "settlement," as used in this act, shall signify any act of Parliament, deed, agreement, copy of court roll, will, or other instrument, or any number of such instruments, under or by virtue of which any hereditaments of au
tenure or any estates or interests in any such hereditaments stand limited to or in trust for any persons, by way of succession, including any such instruments affecting the estates of any one or more of such persons exclusively; and the term "settled estates," as used in this act, shall signify all hereditaments of any tenure and all estates or interests in any such hereditaments which are the subject of a settlement; and for the purposes of this act a tenant in tail after possibility of issue extinct shall be deemed to be a tenant for life.
ing any settled estates, for any purpose whatsoever,
First, every such lease shall be made to take effe
the lessee shall execute a counterpart ther
3. Subject and in addition to the conditions her before mentioned, every such lease shall con such covenants, conditions, and stipulations as court shall deem expedient with reference to special circumstances of the demise."
4. The power to anthorise leases conferred by act shall extend to authorise leases either whole or any parts of the settled estates, and ma exercised from time to time.
5. Any leases granted under this act may be rendered, either for the purpose of obtaining a newal of the same or not; and the power to authe leases conferred by this act shall extend to authe new leases of the whole or any part of the hered ments comprised in any surrendered lease.
2. It shall be lawful for the Court of Chancery in England, so far as relates to estates in England, and for the Court of Chancery in Ireland, so far as 6. The power to authorise leases conferred by relates to estates in Ireland, if it shall deem it act shall extend to authorize preliminary contr proper and consistent with a due regard for the to grant any such leases; and any of the term interests of all parties entitled under the settlement, such contracts may be varied in the leases. and subject to the provisions and restrictions in this 7. The power to authorise leases conferred by act contained, to authorise leases of any settled act may be exercised by the court, either by or by ordering! estates, or of any rights or privileges over or affect-proving of particular leases,
New Statutes effecting Alterations in the Law.
powers of leasing, in conformity with the provisions | proper and consistent with a due regard for the of this act, shall be vested in trustees in manner hereinafter mentioned.
8. When application is made to the court, either to approve of a particular lease, or to vest any powers of leasing in trustees, the court shall require the applicant to produce such evidence as it shall deem sufficient to enable it to ascertain the nature, value, and circumstances of the estate, and the terms and conditions on which leases thereof ought to be authorised.
9. When a particular lease or contract for a lease has been approved by the court, the court shall direct what person or persons shall execute the same as lessor; and the lease or contract executed by such person or persons shall take effect in all respects as if be or they was or were at the time of the execution thereof absolutely entitled to the whole estate or interest which is bound by the settlement, and had immediately afterwards settled the same according to the settlement, and so as to operate (if necessary) by way of revocation and appointment of the use, or otherwise, as the court shall direct.
10. Where the court shall deem it expedient that any general powers of leasing any settled estates conformably to this act should be vested in trustees, it may by order vest any such power accordingly, either in the existing trustees of the settlement or in any other persons; and such powers, when exercised by such trustees, shall take effect in all respects as if the power so vested in them had been originally contained in the settlement, and so as to operate (if necessary) by way of revocation and appointment of the use, or otherwise, as the court shall direct; and in every such case the court, if it shall think fit, may impose any conditions as to consents or otherwise on the exercise of such power, and the court may also authorise the insertion of provisions for the appointment of new trustees from time to time for the purpose of exercising such powers of leasing as aforesaid.
11. It shall be lawful for the Court of Chancery in England, so far as relates to estates in England, and for the Court of Chancery in Ireland, so far as relates to estates in Ireland, if it shall deem it proper and consistent, with a due regard for the interests of all parties entitled under the settlement, and subject to the provisions and restrictions in this act contained, from time to time to authorise a sale of the whole or any parts of any settled estates or of any timber (not being ornamental timber) growing on any settled estates; and every such sale shall be conducted and confirmed in the same manner as by the rules and practice of the court for the time being is or shall be required in the sale of lands sold under a decree of the court.
12. When any land is sold for building purposes It shall be lawful for the court, if it shall see fit, to allow the whole or any part of the consideration to be a rent issuing out of such land, which may be secured and settled in such manner as the court shall approve.
13. On any sale of land any earth, coal, stone, or mineral may be excepted, and any rights or privileges may be reserved, and the purchaser may be required to enter into any covenants, or submit to any restrictions which the court may deem ad
14. It shall be lawful for the Court of Chancery in England, so far as relates to estates in England, and for the Court of Chancery in Ireland, so far as relates to estates in Ireland, if it shall deem it
interests of all parties entitled under the settlement, and subject to the provisions and restrictions in this act contained, from time to time to direct that roads, paths, squares, gardens, or other open spaces, any part of any settled estates be laid out for streets, sewers, drains, or watercourses, either to be dedicated to the public or not; and the court may direct that the parts so laid out shall remain vested in the trustees of the settlement, or be conveyed to and vested in any other trustees, upon such trusts for securing the continued appropriation thereof to the purposes aforesaid in all respects, and with such provisions for the appointment of new trustees when required, as by the court shall be deemed advisable.
15. On every sale or dedication to be effected as herein-before mentioned the court may direct what person or persons shall execute the deed of conveyance; and the deed executed by such pers son or persons shall take effect as if the settlement had contained a power enabling such person or persons to effect such sale or dedication, and so as to operate (if necessary) by way of revocation and appointment of the use, or otherwise as the court shall direct.
16. Any person entitled to the possession or to the receipt of the rents and profits of any settled death, or for an estate for life or any greater estate, estates for a term of years determinable on his may apply to the court, by petition in a summary way, to exercise the powers conferred by this act.
17. Subject to the exception contained in the next section, every application to the court must be made with the concurrence or consent of the following parties; namely,
Where there is a tenant in tail under the settlement in existence, and of full age, then the parties to concur or consent shall be such tenant in tail, or if there is more than one such tenant in tail then the first of such tenants in tail, and all persons in existence having any beneficial estate or interest under or by virtue of the settlement prior to the estate of such tenant in tail, and all trustees having any estate or interest on behalf of any unborn child prior to the estate of such tenant in tail;
And in every other case the parties to concur or consent shall be all the persons in existence having any beneficial estate or interest under or by virtue of the settlement, and also all trustees having any estate or interest on behalf of any unborn child.
18. Provided, nevertheless, that unless there shall be a person entitled to an estate of inheritance whose consent or concurrence shall have been refused or cannot be obtained, it shall be lawful for the court, if it shall think fit, to give effect to any petition, subject to and so as not to affect the rights, estate, or interest of any person whose consent or concurrence has been refused or cannot be obtained, or whose rights, estate or interest ought in the opinion of the court to be excepted.
19. Notice of any application to the court under this act shall be served on all trustees who are seised or possessed of any estate in trust for any person whose consent or concurrence to or in the application is hereby required, and on any other parties who in the opinion of the court ought to be so served, unless the court shall think fit to dispense with such notice.
20. Notice of any application to the court under
New Statutes effecting
this act shall be inserted in such newspapers as the court shall direct, and any person or body corporate, whether interested in the estate or not, may apply to the Court of Chancery by motion for leave to be heard in opposition to or in support of any application which may be made to the court under this act; and the court is hereby authorised to permit such person or corporation to appear and be heard in opposition to or in support of any such application, on such terms as to costs or otherwise, and in such manner as it shall think fit.
21. The court shall not be at liberty to grant any application under this act in any case where the applicant, or any party entitled, has previously applied to either House of Parliament for a private act to effect the same or a similar object, and such application has been rejected on its merits, or reported against by the judges to whom the bill may have been referred.
22. The court shall direct that some sufficient notice of any exercise of any of the powers conferred on it by this act shall be placed on the settlement or on any copies thereof, or otherwise recorded in any way it may think proper, in all cases where it shall appear to the court to be practicable and expedient, for preventing fraud or mistake.
23. All money to be received on any sale effected under the authority of this act, or to be set aside out of the rent or payments reserved on any lease of earth, coal, stone, or minerals as aforesaid, may if the court shall think fit, be paid to any trustees of whom it shall approve, or otherwise the same shall be paid into the Bank of England or Ireland, as the case may be, to the account of the Accountant General of the Court of Chancery, exparte the applicant in the matter of this act, and in either case such money shall be applied as the court shall from time to time direct to some one or more of the following purposes (namely),
The purchase or redemption of the land tax, or the discharge or redemption of any incumbrance affecting the hereditaments in respect of which such money was paid, or affecting any other hereditaments subject to the same uses or trusts; or
The purchase of other hereditaments to be settled
in the same manner as the hereditaments in respect of which the money was paid; or The payment to any person becoming absolutely
24. The application of the money in manner aforesaid may, if the court shall so direct, be made by the trustees (if any) without any application to the court, or otherwise upon an order of the court upon the petition of the person who would be entitled to the possession or the receipt of the rents and profits of the land if the money had been invested in the purchase of land.
25. Until the money can be applied as aforesaid, the same shall be from time to time invested in Exchequer Bills, or in Three per Centum Consolidated Bank Annuities, as the court shall think fit; and the interest and dividends of such Exchequer Bills or Bank Annuities shall be paid to the person who would have been entitled to the rents and profits of the land if the money had been invested in the purchase of land.
26. The court shall be at liberty to exercise any of the powers conferred on it by this act, whether the court shall have already exercised any of the powers conferred by this act in respect of the same
Alterations in the Law.
property, or not; but no such powers shall be exercised if an express declaration or manifest intention that they shall not be exercised is contained in the settlement, or may reasonably be inferred therefrom, or from extrinsic circumstances or evidence: Provided always, that the circumstance of the settlement containing powers to effect similar purposes shall not preclude the court from exercising any of the powers conferred by this act, if it shall think that the powers contained in the settlement ought to be extended.
27. Nothing in this act shall be construed to empower the court to authorise any lease, sale, or other act beyond the extent to which in the opinion of the court the same might have been authorised in and by the settlement by the settlor or settlors.
28. After the completion of any lease or sale, or other act, under the authority of the court, and parporting to be in pursuance of this act, the same shall not be invalidated on the ground that the court was not hereby empowered to authorise the same; except that no such lease, sale, or other act shall have any effect against any person whose concurrence in or consent to the application ought to have been obtained, and was not obtained.
29. It shall be lawful for the court, if it shall think fit, to order that all or any costs or expenses of all or any parties of and incident to any application under this act shall be a charge on the hereditaments which are the subject of the application, or on any other hereditaments included in the same settlement, and subject to the same limitations; and the court may also direct that such costs and expenses shall be raised by sale or mortgage of a sufficient part of such hereditaments, or out of the rents or profits thereof, such costs and expenses to be taxed as the court shall direct.
30. The Lord Chancellor of Great Britain, with the advice and assistance of the English Master of the Rolls, the Lords Justices of the Court of Appeal any three in Chancery, and the vice-chancellors, or of of them, so far as relates to proceedings in England, and the Lord Chancellor of Ireland, with the advice and assistance of the Irish Master of the Rolls, and of the Lord Justice of the Court of Appeal in Chancery in Ireland, or of any two of them, so far as relates to proceedings in Ireland, may, if he shall think fit, from time to time make general rules and orders for carrying the purposes of this act into effect, and for regulating the times and form and mode of procedure, and generally the practice of the court in respect of the matters to which this act relates, and for regulating the fees and allowances to all officers and solicitors of the court in respect to such matters; and such rules and orders may from time to time be rescinded or altered by the like authorities respectively; and all such rules and orders shall take effect as general orders of the court.
31. All general rules and orders made as aforesaid shall, immediately after the making and issuing thereof, be laid before both Houses of Parliament, if Parliament be then sitting, or if Parliament be not then sitting, within twenty-one days after the next meeting thereof; and it shall be lawful for either of the Houses of Parliament, by any resolution passed within thirty-six days after such rules or orders have been laid before it, to resolve that the same or any part thereof ought not to continue in force, and thereupon the same shall cease to be binding.
32. It shall be lawful for any person entitled to the possession or to the receipt of the rents and profits of any settled estates for an estate for life,
New Statutes effecting Alterations in the Law.
or for a term of years determinable with his life, or for any greater estate, either in his own right or in right of his wife, unless the settlement shall contain an express declaration that it shall not be lawful for such person to make such demise; and also for any person entitled to the possession or to the receipt of the rents and profits of any unsettled estates as tenant by the courtesy, or in dower, or in right of a wife who is seised in fee, without any application to the court, to demise the same or any part thereof, except the principal mansion house and the demesnes thereof, and other lands usually occupied therewith, from time to time, for any term not exceeding twenty-one years to take effect in possession; provided, that every such demise be made by deed, and the best rent that can reasonably be obtained be thereby reserved, without any fine or other benefit in the nature of a fine, which rent shall be incident to the immediate reversion; and provided that such demise be not made without impeachment of waste, and do contain a covenant for payment of the rent, and such other usual and proper covenants as the lessor shall think fit, and also a condition of re-entry on non-payment for a period not less than twenty-eight days of the rent thereby reserved, and on non-observance of any of the covenants or conditions therein contained; and provided a counterpart of every deed of lease be executed by the lessee.
33. Every demise authorised by the last preceding section shall be valid against the person granting the same, and all other persons entitled to estates subsequent to the estate of such person under or by virtue of the same settlement, if the estates be settled, and in the case of unsettled estates against all persons claiming through or under the wife or husband (as the case may be) of the person granting
34. The execution of any lease by the lessor or lessors shall be deemed sufficient evidence that a counterpart of such lease has been duly executed by the lessee as required by this act.
35. The act of the thirty-second year of King Henry the eighth, chapter twenty-eight, intituled "lessees to enjoy the farm against the tenants in tail,” and the act of the Parliament of Ireland of the tenth year of King Charles the First, session three, chapter six, intituled "An Act that Lessees shall enjoy their Farms against Tenants in Tail or in right of their Wives, &c.," are hereby repealed, except so far as relates to leases made by persons having an estate in the right of their churches.
36. All powers given by this act, and all applications to the court under this act, and consents to such applications, may be exercised, made, or given by guardians on behalf of infants, and by committees on behalf of lunatics, and by assignees of bankrupts or insolvents: Provided nevertheless, that in the cases of infant or lunatic tenants in tail no application to the court or consent to any application may be made or given by any guardian or committee without the special direction of the court.
37. Where a married woman shall apply to the court, or consent to an application to the court, under this act, she shall first be examined apart from her husband touching her knowledge of the nature and effect of the application, and it shall be ascertained that she freely desires to make or consent to such application; and such examination shall be made whether the hereditaments which are the subject of the application shall be settled in trust for the separate use of such married woman indepen
dently of her husband, or not; and no clause or provision in any settlement restraining anticipation shall prevent the court from exercising, if it shall think fit, any of the powers given by this act, and no such exercise shall occasion any forfeiture, anything in the settlement contained to the contrary notwithstanding.
38. The examination of such married woman shall be made either by the court or by some solicitor duly appointed by the court for that purpose, who shall certify, under his hand, that he has examined her apart from her husband, and is satisfied that she is aware of the nature and effects of the intended application, and that she freely desires to make or consent to the same.
39. Subject to such examination as aforesaid, married women may make or consent to any applications, whether they be of full age or infants.
40. Nothing in this act shall be construed to create any obligation at law or in equity on any person to make or consent to any application to the court, or to exercise any power.
41. For the purposes of this act, a person shall be deemed to be entitled to the possession or to the receipt of the rents and profits of estates, although his estate may be charged or incumbered either by himself or by the settlor, or otherwise howsoever, to any extent; but the estates or interests of the parties entitled to any such charge or incumbrance shall not be affected by the acts of the person entitled to. the possession or to the receipt of the rents and profits as aforesaid unless they shall concur therein.
42. Provided always, that nothing in this act shall authorise any sale or lease beyond the term of twenty-one years of any settled estates in which, under the act of the thirty-fourth and thirty-fifth years of King Henry the Eighth, chapter twenty, "to embar feigned recovery of lands wherein the King is in reversion," or under any other Act of Parliament, the tenants in tail are restrained from barring or defeating their estates tail, or where the reversion is vested in the crown.
43. Nothing in this act shall authorise the granting of a lease of any copyhold or customary hereditaments not warranted by the custom of the manor without the consent of the lord, nor otherwise prejudice or affect the rights of any lord of a
44. The provisions of this act shall extend to all settlements, whether made before or after it shall come in force, except those as to demises to be made without application to the court, which shall extend only to settlements made after this act shall come
45 This act shall not extend to Scotland.
46. This act shall come in force on the first day of November 1856.
INCORPORATED LAW SOCIETY.
ANNUAL REPORT OF THE COUNCIL,
III. PRACTICAL PROCEEDINGS.
Proposed new law courts and offices.-The Council refer to their report of last year, in which they stated the measures which they had taken for the purpose of promoting this desirable object. They have called the attention of Sir Benjamin Hall, the present chief commissioner of works and buildings,
Incorporated Law Society-Annual Report.
to the subject, by an official communication; and it is to be hoped that, before long, the government will see the absolute necessity of providing proper accommodation for the courts and offices.
The Council having been informed that it was intended by the corporation of London to erect additional courts of nisi prius at Guildhall, they suggested that a room should be provided for attorneys attending the trial of causes, and in the construction of the courts, their suggestion will, they believe, be adopted.
Practice of the bar.-The attention of the Council was called to the transfer of a brief by one barrister to another, without the consent or knowledge of the attorney or his client; but eventually a satisfactory explanation was made to the attorney, and there was no attempt to assert the principle of a barrister's being at liberty to adopt such a course.
Practice as to retainers.-The members are aware of the rules relating to the retainer of barristers which were agreed to at a special general meeting of the members of the society on the 29th November, 1848, and that the Council are willing to settle any questions between solicitors coming within the scope of those rules. As only one question has been referred to them during the past year, it would seem that the practice is becoming settled.
Usages of the profession.—It is one of the advantages of the society, that questions arising between solicitors in the course of their practice, particularly in conveyancing matters, can be referred to the Council for their opinion on the general usage amongst members of the profession.
Those opinions are recorded as usages in a book kept in the secretary's office. During the past year many points have arisen to which the Council have given their attention. They do not, however, consider it to be within their province to decide questions arising between contending parties, except where both concur in a statement of facts, and agree
be bound by the decision of the Council; but where the subject involves a question of professional usage, they consider the members of the society entitled to their opinion upon such usage.
New rules and orders.-The rules and orders of court which have been printed for the society during the past year, and sent to the members, viz. In the Court of Chancery.
30th Nov. 1855.-Entries in cause books at the Record Office to be written on decrees, orders, &c.
In the common law courts.
Malpractice cases.-The Council regret to state that they have been called upon to investigate several alleged cases of malpractice during the past year, and to institute proceedings thereon.
The mode of proceeding to strike attorneys off the roll, and the practice as to re-admissions, have been under the consideration of the Council, with a view to some proposed amendments which will be embodied in a memorial to the judges.
IV. LEGAL EDUCATION AND EXAMINATION OF
Commissioners' report on inns of court and Chancery - Proposed law university. The report of the commissioners on the Inns of Court and Chancery, dated 10th August, was published in December last, and with respect to the Inns of Chancery the commissioners state that they do not find that there exist any available funds of those societies for promoting the study of the law, and they are unable to fix upon them a legal liability to contribute to any professional purpose. The commissioners then proceed to the consideration of the Inns of court, and recommend that they should be united in a "University," with the power of conferring degrees in law, of which the constituent members shall be, "the Chancellor of the University, barristers at law, and masters of law."
The Council are of opinion that a university confined to barristers and students of the inns of court, and from admission to which attorneys and solicitors are excluded, ought to be objected to on their behalf.
The members will recollect that the regulations of the inns of court which have been made within a comparatively recent period, are evidently designed to prevent the admission of attorneys and solicitors and their articled clerks into the inns of court, and the Council conceive that such regulations are injurious and unjust, and they can see no reason why the call of attorneys and solicitors should be delayed for so long a period as five years.
The Council are now engaged in considering the several suggestions which have been made to them for improving the mode of proceeding at the examination of articled clerks, and as to distinguishing, by some mark of approbation, those candidates who have shown especial merit.
V. GENERAL AFFAIRS OF THE SOCIETY.
Completion of the south wing of the hall.-The members are aware that, for the purpose of com
Summary Procedure on Bills of Exchange Act, pleting the original design of the hall, the society
1855, 18 & 19 Vict. cap. 67.
11th Aug. 1855.-Common pleas at Lancaster. Register of judgments. - Regulations as to searches. In the county courts.
7th Nov. 1855.-Proceedings under Friendly Societies Act.
Saturday half-holiday. The proposition which was noticed last year for closing legal business at 2 o'clock on Saturdays, in favour of which the Council received and supported a memorial signed by several hundred solicitors in the metropolis, has been somewhat modified on the intimation received from the judges: it is now limited by the common law courts to the service of process, which, if made after 2 o'clock on the Saturday, will be deemed to be served on the Monday.
The Lord Chancellor and the other equity judges have been requested to make a similar order, and it is expected it will soon be pronounced,
has acquired by purchase the buildings and ground on the south side of the present building, to the extent of between 60 and 70 feet, and comprehending the whole space between Chancery Lane and Bell Yard within that limit.
In 1853 the annual general meeting, on the recommendation of the Council, reduced the admission fee from £15 to £5. The result of this alteration has been that the number of admissions, which had for several previous years gradually decreased, has since increased, after deducting deaths and retirements, from 1301 to 1551, the present number of members.
The Council consider that the time has now arrived to complete the original design of the building, for the purpose of affording the additional accommodation which is urgently demanded by the large increase in the number of members and the extension of the business of the society, in the public