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Lectures at the Incorporated Law Society. “The conclusion that our Courts of Law and at once; and therefore, that any one of and Courts of Equity are so called, not be our Superior Courts of Justice, which has once cause they are solely and exclusively, but be taken congnizance of any case brought before cause they are peculiarly and chiefly that which it, should be competent completely to dispose their names respectively import, seems to be of it, and to administer the full measure of justified by the attempts which have been justice, whether it be strict Law or Equity, made, and, for aught we know, are now being which the case requires, without having to turn made, towards effecting what is called the the case over to a second tribunal, to obtain amalgamation of Law and Equity. By the that residue of justice which the first was inrecent Common Law Procedure Acts, powers competent to administer. have been conferred upon Courts of Law, to “But how and to what extent this is now to admit some equitable defences, to compel dis- be brought about, it is not our present purpose covery and the specific delivery of chattels, and to inquire. It will, however, be neither useless in some cases also to interfere by way of in- nor uninteresting to keep the idea before us, junction; while it has also been proposed to as we proceed with our subject. gire a power to the Court of Chancery in cases “Having made these general introductory of specific performance of contracts, not only observations, I nror se now to consider the to decree such specific performance, but to chief of those su. in particular, which exaward also the damages sustained by a suc. Jemplify the applicar on of Equity as admicessful plaintiff by reason of the defendant's nistered by the Court of Chancery. And here non-performance of the contract, and which we must observe, that the equity thus admidamages, in the present state of the jurisdic- nistered, although I have described it as an tion, have to be recovered at law. By such Equity of a less general kind than natural means, the different Courts iniybt no doubt Equity, is still of a very expansive and farbe made to approach more nearly to each other reaching character; we must also bear in mind in the rights of which they take cognizance, that this equity is not administered in an irre. and in the remedies they administer. And, in- gular or arbitrary manner, according to the deed, they might probably be put upon very caprice or fancy, or the inere discretion of the much the same footing; for, as we have seen, Judge for the time being. The matter to be there is no inherent necessity why there should adjudicated is not dependent merely upon the be separate tribunals, nor is there any reason conscience of the particular Chancellor, which, why the same Court should not administer to use a quaint but not very happily applied both Law and Equity to the utmost extent that illustration of old, may accidentally be good, our system admits. The whole question seems bad, or indifferent, as the measure of his foot to be one of administrative facility and con- may happen to be short or long. The illustravenience. But although we might in this way tion, indeed, so far as it may be applicable at assimilate the doctrines and practice of the all, would seem to apply, at least in these days, different Courts, we should still find it neces- not so much to the consciences as to the various sary to keep up the distinction between Law intellectual and judicial capacities of different and Equity, or some other distinction equiva- Chancellors, which must more or less expose lent to that. Convenience would require us them to, or exeinpt them from, error in judgstill to have recourse to trusts, and we should ment. For we must suppose that the judgstill have to distinguish between the strict legal ment, whether erroneous or not, will have right and estate of the trustee, and the equi- conscience on its side. This conscience or judge table or beneficial right and estate of the cestui meut (whatever we choose to call it), is, howque trust : although the present distinction ever, not arbitrary or discretionary, but is might be so far removed as that a Court of guided or restrained by the precedents or preLaw should recognise and give effect to, not vious decisions of the Court applicable to the only the legal right, but the equitable right subject in hand. And these decisions being also, in the same way that a Court of Equity the recorded judgments of the highest judicial only now does. Thus, what is called the ainal- wisdom, by their successive accumulations, now gamation of Law and Equity would, perbaps, constitute an enlightened system of equitable be more correctly styled the amalgaination of jurisprudence, which cannot be wantonly or Courts of Law and Equity. For it is not to be lightly disturbed without destroying that uni. supposed that where there are distinct rights, formity in the administration of justice, on legal and equitable, either Law which supports which depend the security of property and the the one, or Equity which supports the other, quiet of the realm. For an uncertain law is can be amalgamated or merged in the other. said to be more intolerable than an unjust law. But that which is aimed at is, to abolish the pe. Among the decisions of the Equity tribunals, culiarity in this country of keeping up a distinc. there will no doubt he found some that are tion between the Courts of Law and the Courts erroneous or conflicting, or for other reasons of Equity. And this distinction between the unsatisfactory, but these are accidental bleCourts might be removed by assimilating their mishes to be laid to the charge not of the sysdoctrines and practice in the mode to which I tem, but of the infirmity of human judgment.” have referred.

“ It certainly does seem desirable that justice should, if possible, be administered not piece. meal, in fragments and fractions, but entirely

ON

day of

day of

86

The Summary Procedure on Bills of Exchange Act, 1855. THE SUMMARY PROCEDURE not within such time cause an appearance

to be entered for him in the Court out of

which this writ issues, the plaintiff will be BILLS OF EXCHANGE ACT, 1855. at liberty at any time after the expiration of

such 12 days to sign final judgment for any 18 & 19 Vict. c. 67.

sum not exceeding the sum above claimed, FORMS OF INDORSEMENT ON WRITS. and the sum of

pounds for costs, The Writs and Indorsements on Writs under and issue execution for the same. this Act may be in the following Form :

Leave to appear may be obtained on an

application at the Judges' Chambers, SerVICTORIA, by the grace of God, &c. jeants' Inn, London, supported by affidavit To C. D., of

, in the county showing that there is a defence to the action of

We warn you, that unless on the merits, or that it is reasonable that within 12 days after the service of this writ the defendant should be allowed to appear on you, inclusive of the day of such service, in the action. you obtain leave from one c: the Judges of the Courts at Westminster to appear, and do

Indorsement to be made on the Writ after within that time appear in our Court of

Service thereof. in an action at the suit of A. B., This writ was served by X. Y. on L. M. the said A. B. may proceed to judgment (the defendant, or the defendants), and execution.

on Monday, the

18 Witness, &c.

By X. Y. Memorandum to be subscribed on the Writ.

N. B.- This writ is to be served within six calendar months from the date thereof,

The following is the form of Judgment or, if renewed, from the date of such re

under the Act:newal, including the day of such date, and in the Queen's Bench. not afterwards.

On the

in the year Indorsement to be made on the Writ before

of our Lord 18 Service thereof.

[Day of signing judgment.] This writ was issued by E. F.,

ENGLAND (to wit). A. B. in his own attorney for the plaintiff. Or, this writ person (or by

his attorney] was issued in person by A. B., who resides sued out a writ against C. D., indorsed as at (mention the city, town, or parish, and

follows:also the name of ihe hamlet, street, and [Here copy indorsement of plaintiffs claim.] number of the house of the plaintif"'s resi- and the said C. D. has not appeared : dence.]

Therefore it is considered that the said Indorsement.

A. B. recover against the said C. D. The plaintiff claims pounds pounds, together with

pounds for principal and interest, or]

costs of suit.

pounds balance of principal and interest due to him as the payee (or indorsee] of a bill of exchange or promissory note, of which the

N.B. No other claim than a claim on a following is a copy : [Here copy bill of exchange or promissory included in writs, isued under the Summary

bill of exchange or promissory note is to be note, and all indorsements upon it). And Procedure on Bills of Exchange Act, 1855. also shillings for noting (if noting has been paid], and also pounds for costs. And if the amount thereof be paid to the Notices to the above effect relating to the plaintiff or his attorney within four days indorsements of writs under the Act have been from the service hereof, further proceedings placed up in the offices of the Masters of all will be stayed.

the Common Law Courts. No formal Rule NOTICE.

of Court has been made, nor does any appear Take notice, that if the defendant do not to be necessary; but we are informed that the obtain leave from one of the Judges of the Judges have approved of these forms. Courts within 12 days after buying been served with this writ, inclusi“, (the day of such service, to appear t} to and do

of

Review : Smith's Compendium of the Law of Real and Personal Property. 87 NOTICES OF NEW BOOKS. be of the utmost service to many, if not to

most practitioners, aiding them, on the one A Compendium of the Law of Real and hand, in judging

as to what may be regarded

as settled law, and thus saving them from Personal Property, connected with Con much needless perplexity about clear points ; veyancing. For the use of Students and and by suggesting to them, on the other hand, Practitioners. By Josrau W. Smith, those doubts, distinctions, rules, exceptions, B.C.L., of Lincoln's Inn, Esq., Barrister and legal views, of which they cannot be ignoat-Law, Editor of “ Mitford's Chancery rant without the most serious consequences ; Pleadings,” and “Fearne's Contingent and serving, in the rapid occasions of daily Remainders," and Author of "a Treatise practice, as a help to the attainment of accurate on Executory Interests.” London : Ste- views, gained from the perusal and comparison

of other authors, and from the modern Statutes. vens & Norton. 1855. Pp. 1019.

and cases. Instances are not wanting in which We wish, without delay, to notice this barristers and solicitors of long standing and volume, which is designed as a “ Text- in extensive practice have fallen into fatal misBook," as well for the student as the prac, doubtless possessed the text-books on particu

takes, from the want of such assistance. They titioner, comprising the points most needful lar subjects, by a search of which they would to be borne in mind in ordinary practice. have been saved from mistake ; but what they The Author, Mr. Josiah W. Smith, has needed, in the pressure of practice, was, that embodied concisely and clearly in his work adequate general knowledge which a sound such rules and principles of the Law of general text-book alone can enable the student Real and Personal Property, connected with or practitioner to store up in his mind; the Conveyancing, as are essential to be gene- points in books on particular subjects being rally remembered, and which are distin- infinitely too numerous to be remembered, and guished from points that may be safely left being often a dead letter to the practitioner for

want of general preparatory knowledge to lead for investigation when the occasion arises. him to examine them.”

The learned Author says: " It is extremely difficult, indeed impossible, tutes should be dealt with in a work of this

In considering how far the modern Stato draw the exact line in this respect; but such has been the principle of selection, although kind, Mr. Smith observes thatperhaps he may have inserted some matter that

To have given in full all the enactments he might have properly omitted, and omitted relating to the subject, would of course have some that he ought to have inserted.

quite overloaded the work, and swelled it out "Upon this principle, he has, on the one to a very large size. Again, to have noticed hand, excluded all antiquarian and theoretical, all the enactments briefly, appeared to be only and indeed every other kind of disquisition,a mass of obsolete law,-a variety of unsettled enactments of such a general purport and effect,

of use in apprising the reader that there are questions,- all detailed abstracts of cases,

without giving him an accurate view of those and an immense number of points and cases enactments. "A third mode therefore has been which he did not consider as of general appli- adopted, namely, to treat the Statute Law in the cation, or necessary to be retained in the mind, same way as the unwritten law, that is, to notice if it were possible to remember them: while, on such only of the enactments as appeared nethe other hand, he has been especially anxious cessary to be borne in mind, as distinguished to insert those points which affect drafting, as from those which may be left for investigabeing the points of all others the least capable tion pro re natá, and generally (as the only of being safely left for investigation pro re thoroughly satisfactory course) to give verbanalá; such, for instance, as cases of construc- tim the enactments 'so noticed, leaving the tion of common or not unfrequent occurrence. practitioner to refer to the other enactments as And hence many points have been inserted, not the occasion arises, which he may now readily for the purpose of enabling the practitioner to do, by the help of Mr. Stamp's excellent Index form an opinion without further research, but to the Statute Law, a work comprised in one chiefly for the purpose of putting him on his small volume, which has been of the greatest guard when engaged in preparing deeds and assistance to the writer, but of the merits of wills, so as to save him from mistakes into which he was unfortunately not aware until which he might otherwise fall, or for giving he had nearly commenced printing. In many rise to doubts and questions."

instances where the words of a Statute have A general text-book is absolutely neces- been given verbatim, the writer has prefixed to sary for the Student, before he can apply them an abridged statement, which may serve himself with profitable study either to the as some help to the student." perusal of legal works or to the practice of The work is divided into four parts, his profession.

treating"If well executed by the writer, and well

1. Of the several kinds of Things condigested by the reader, such a book must also stituting the subjects of Conveyancing.

88 Review : Smith's Compendium of the Law of Real and Personal Property.

2. Of the several kinds of Interests in I fee simple ; 2. Limited fees :-(1.) Base or Things constituting the subjects of Convev. qualified fees; (2.) Fees subject to a condition ancing.

subsequent or conditional limitation ; (3.) Con

| ditional fees at Common Law; (4.) Fees tail. 3. Of the Title to things constituting

| 2. Freeholds not of inheritance : -1. Estates the subjects of Conveyancing.

for life, specifically so called ; 2. Estates tail, .4, Of certain persons and miscellaneous after possibility of issue extinct; 3. Estates by heads of Law connected with Conveyanc- the curtesy; 4. Estates in dower, freebench, ing :-such as executors, trustees, married and jointure. women, infants, &c.

2. Interests less than freeholds : We consider this volume to be one of es- 1. Estates for years ; 2. Estates at will; 3. pecial importance to the student. After he Interests by sufferance; 4. Chattel interests has carefully perused the latest edition of created for special purposes. Blackstone's Commentaries, we recommend 3rd. -1. Interests in severalty. him diligently and perseveringly to study

2. Interests in community : this compendium of the Law of Real and.

| 1. In joint tenancy; 2. By entireties; 3. In

coparcenary ; 4. In common. Personal Property, which we think cannot fail to make him a good conveyancer and

4th.-1. Merely legal interests; and herein of

uses. enable him to master this difficult branch of

2. Merely equitable interests or trusts. our law and practice. He should not quit

3. Both legal and equitable interests. the perusal of any section until he has fully

15th.-1. Vested interests or actual estates : comprehended all the principles and points :

1 1. Present vested interests ; 2. Future vested it contains. For this purpose he should interests :-(1.) Vested remainders; (2.) Remake his own analysis of each section, as versions. concisely as possible, but sufficiently at a 2. Executory interests, or interests only, glance to recall the rules and principles as distinguished from actual estates, whewhich the Author has expounded.

ther created by executory devise, or by An analysis of the whole work is given executory limitation by way of use: by the Author in his introductory chapter,

(a) 1. Certain ; 2. Contingent. and we subjoin a statement drawn therefrom

(6) 1. Contingent remainders ; 2. Springwhich will show the comprehensive scope of terests augmented in a given event; 5. In

Jing interests; 3. Alternative interests ; 4. Inhis labours.

terests diminshed in a given event; 6. InThe several kinds of things constituting the terests under conditional limitations. subjects of conveyancing.

3. Rights of entry or action.

4. Mere possibilities. 1. Things real.

5. Mere adverse possessions. 2. Things personal:-1. Chattels real; 2.

6. Expectancies of heirs apparent or chattels personal.

heirs presumptive, 1. Things corporeal.

7. Powers. 2. Things incorporeal, as :-1. Annuities ;

8. Charges. 2. Rents; 3. Advowsons ; 4. Tithes; 5. Com

9. Liens. mons; 6. Franchises or liberties; 7. Ways, &c. a.

ii. Ways, &c. | 6th.-1. Absolute or indefeasible interests. II. The several kinds of interests in things con 2. Defeasible interests : and herein of

stituling the subjects of conveyancing (some mortgages of real property, and estates of which depend on or are affected by (1.) |

or interests by statute taerchant, statute Conditions, (2.) Limitations.]

staple, recognisance, judgment, and elegit. First, in things real :

Secondly, in things personal. Ist. -1. Freehold interests (so termed in re- st. -1. Absolute or unlimited interests. ference to tenure) :

2. Limited interests. 1. Interests in hereditaments of common or

2nd.-1. Interests in severalty. ordinary socage tenure; 2. Interests in here

2. Interests in community. ditaments of gayelkind tenure; 3. Interests in hereditaments of burgage tenure; 4. Interests

stel 1. In joint tenancy; 2. In common. in hereditaments of grand sergeantry tenure ;, 3rd.-1. Merely legal interests. 5. Interests in hereditaments of petit sergeantry 2. Merely equitable interests. tenure; 6. Interests in hereditaments of frank

3. Both Legal and equitable interests. almoign tenure.

4th.-1. Vested interests : 2. Copyhold Interests :

1. Present rested interests; 2. Future vest1. Ordinary copybolds ; 2. Free copyholds, ed interests, such as vested quasi remainders

mesne.
2nd.--1. Freehold interests (80 termed in re-
• ference to duration): '.
1. Freeholds of inheritance :-1. Estates in

termed reversionary interests.

2. Executory interests : (u) 1. Certain ; 2. Contingent. (6).1. Contingent quasi remainders ; 2.

Review : Smith's Real and Personal Property, -Diseases Prevention Act. 89 Springing interests; 3. Alternative interests; 2. Some miscellaneous heads of law con

Interests augmented in a given event; 5. nected with conveyancingInterests diminished in a given event; 6. in 1. Waste; 2. Merger; 3. Conversion; 4. terests under conditional limitations.

Election; 5. Satisfaction.
3. Choses in action.
4. Expectancies of next of kin.
5. Powers,

DISEASES PREVENTION ACT.
6. Charges.
7. Liens.

18 & 19 Vict. c. 116. 5th.-1. Absolute or indefeasible interests.

The provisions of “The Nuisances Removal 2. Defeasible interests: and herein of mortgages of personal property.

and Diseases Prevention Act, 1848,” amended III. The title to things constituting the subjects

by “The Nuisances Removal and Diseases Preof conveyancing:

vention Amendment Act, 1849," in so far as 1. Marriage; 2. Descent, succession, and the same relate to the prevention or mitigation adıninistration ; 3. Escheat; 4. Occupancy; of epidemic, endemic, or contagious diseases, 5. Alluvion and dereliction; 6. Prescription ; are stated in the preamble to be defective, and 7. Adverse possession and the operation of it is expedient to substitute other provisions the Statutes of Limitation ; 8. Forfeiture ; 9. Bankruptcy and Insolvency; 10. Alienation.

9. more effectual in that behalf; it is therefore 1. By mere written agreement.

enacted, as follows :2. By deed.

The local authority for executing this Act Those deeds which are termed conveyances shall be the

Invevances shall be the local authority acting in execution are

of any general Act in force for the time being 1. Common Law Conveyances :- 1. Feoff-| for the removal of nuisances; s. 2. ments ; 2. Gifts ; 3. Grants; 4. Bargains and The expenses incurred in execution of this sales; 5. Leases and underleases; 6. Er- Act shall be borne out of the rates or funds changes ; 7. Partitions ; 8. Releases ; 9. Con- administered by such local authority, under firmations; 10. Surrenders ; 11. Assignments; the provisions and for the purposes of any such 12. Defeasances; 13. Disclaimers.

general Act as is referred to in the preceding 2. Statutory Conveyances, which (without section; s. 3. reckoning feoffments and bargains and sales, The local authority and their officers shall when made to uses) are:-l. Covenants to have power of entry for the purposes of this stand seised; 2. Deeds of lease and release; Act, and for executing or superintending the 3. Statutory releases ; 4. Statutory grants; 5. execution of the regulations and directions of Deeds to lead and declare uses ; 6. Deeds of the general board issued under this Act; s. 4. revocation of uses ; 7. Deeds of appointment Whenever any part of England appears to under powers; 8. Leases under powers ; 9.

be threatened with or is affected by any forBargains and sales under the Fines and Re

midable epideinic, endemic, or contagious discoveries Abolition Act; 10. Concise conveyances and leases under the Stat. 8 & 9 Viet.

ease, the Lords and others of her Majesty's

most honourable Privy Council, or any three cc. 119, 124.

or more of them, (the Lord President of the Deeds other than conveyances. Such are1. Deeds of covenant or agreement; 2. cretaries of State being one,) may, by order

Council or one of her Majesty's principal SeBonds; 3. Declarations of trust.

or orders to be by them from time to time Deeds when considered with reference to the

inade, direct that the provisions herein conpurpose to be effected by them, are

tained for the prevention of diseases be put in 1. Purchase deeds; 2. Mortgage deeds; 3.

Ceas : force in England, or in such parts thereof as Marriage settlements; 4. Deeds of indemnity;

in such order or orders respectively may be ex5. Composition or creditors' deeds, &c.

pressed, and may from time to time, as to all 3. By matter of Record :

or any of the parts to which any such order or 1. Private Act; 2. Royal grant; 3. Fine;

ei orders extend, and in like manner, revoke or 4. Recovery.

renew any such order; and, subject to revoca4. By voluntary grant and admittance,

tion and renewal as aforesaid, every such order or by surrender and admittance, or by

shall be in force for six calendar months, or for bargain and sale and admittance, or by

such shorter period as in such order shall be recovery, in the case of copyholds.

expressed ; and every such order of her Ma5. By will.

I jesty's Privy Council, or of any members IV. Certain persons and miscellaneous heads thereof, as aforesaid, shall be certified under

of law connected with conveyancing: the hand of the Clerk in ordinary of her Ma1. Certain persons connected with convey

jesty's Privy Council, and shall be published ancing

in the London Gazette; and such publication 1. Executors and administrators: 2. Trus- shall be conclusive evidence of such order, to tees: 3. Married women ; 4. Infants ; 5. Ille- all intents and purposes ; 8. 5. gitimate children ; 6. Persons of unsound from time to time after the issuing of any mind; 7. Aliens; 8. Corporations.

such order as aforesaid, and whilst the same

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