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Lectures at the Incorporated Law Society.
and at once; and therefore, that any one of our Superior Courts of Justice, which has once taken congnizance of any case brought before it, should be competent completely to dispose of it, and to administer the full measure of justice, whether it be strict Law or Equity, which the case requires, without having to turn the case over to a second tribunal, to obtain that residue of justice which the first was incompetent to administer.
"The conclusion that our Courts of Law and Courts of Equity are so called, not because they are solely and exclusively, but because they are peculiarly and chiefly that which their names respectively import, seems to be justified by the attempts which have been made, and, for aught we know, are now being made, towards effecting what is called the amalgamation of Law and Equity. By the recent Common Law Procedure Acts, powers have been conferred upon Courts of Law, to "But how and to what extent this is now to admit soine 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. give a power to the Court of Chancery in cases "Having made these general introductory of specific performance of contracts, not only observations, I prorese 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- emplify the applicat 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 might 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 irreand 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 mere discretion of the much the same footing; for, as we have seen, there is no inherent necessity why there should be separate tribunals, nor is there any reason why the same Court should not administer both Law and Equity to the utmost extent that our system admits. The whole question seems to be one of administrative facility and convenience. But although we might in this way assimilate the doctrines and practice of the different Courts, we should still find it necessary to keep up the distinction between Law and Equity, or some other distinction equivalent to that. Convenience would require us still to have recourse to trusts, and we should still have to distinguish between the strict legal right and estate of the trustee, and the equitable or beneficial right and estate of the cestui que trust: although the present distinction might be so far removed as that a Court of Law should recognise and give effect to, not only the legal right, but the equitable right also, in the same way that a Court of Equity only now does. Thus, what is called the amalgamation of Law and Equity would, perhaps, be more correctly styled the amalgamation of Courts of Law and Equity. For it is not to be supposed that where there are distinct rights, legal and equitable, either Law which supports the one, or Equity which supports the other, can be amalgamated or merged in the other. But that which is aimed at is, to abolish the peculiarity in this country of keeping up a distinction between the Courts of Law and the Courts of Equity. And this distinction between the Courts might be removed by assimilating their doctrines and practice in the mode to which I have referred.
"It certainly does seem desirable that justice should, if possible, be administered not piecemeal, in fragments and fractions, but entirely
Judge for the time being. The matter to be adjudicated is not dependent merely upon the conscience of the particular Chancellor, which, to use a quaint but not very happily applied illustration of old, may accidentally be good, bad, or indifferent, as the measure of his foot may happen to be short or long. The illustration, indeed, so far as it may be applicable at all, would seem to apply, at least in these days, not so much to the consciences as to the various intellectual and judicial capacities of different Chancellors, which must more or less expose them to, or exempt them from, error in judg ment. For we must suppose that the judgment, whether erroneous or not, will have conscience on its side. This conscience or judgmeut (whatever we choose to call it), is, however, not arbitrary or discretionary, but is guided or restrained by the precedents or previous decisions of the Court applicable to the subject in hand. And these decisions being the recorded judgments of the highest judicial wisdom, by their successive accumulations, now constitute an enlightened system of equitable jurisprudence, which cannot be wantonly or lightly disturbed without destroying that uniformity in the administration of justice, on which depend the security of property and the quiet of the realm. For an uncertain law is said to be more intolerable than an unjust law. Among the decisions of the Equity tribunals, there will no doubt he found some that are erroneous or conflicting, or for other reasons unsatisfactory, but these are accidental blemishes to be laid to the charge not of the system, but of the infirmity of human judgment."
The Summary Procedure on Bills of Exchange Act, 1855.
THE SUMMARY PROCEDURE
BILLS OF EXCHANGE ACT, 1855.
18 & 19 VICT. c. 67.
FORMS OF INDORSEMENT ON WRITS. The Writs and Indorsements on Writs under this Act may be in the following Form: VICTORIA, by the grace of God, &c. To C. D., of in the county of We warn you, that unless within 12 days after the service of this writ on you, inclusive of the day of such service, you obtain leave from one the Judges of the Courts at Westminster to appear, and do within that time appear in our Court of in an action at the suit of A. B., the said A. B. may proceed to judgment and execution.
Memorandum to be subscribed on the Writ.
N. B.-This writ is to be served within six calendar months from the date thereof, or, if renewed, from the date of such renewal, including the day of such date, and not afterwards.
Indorsement to be made on the Writ before
This writ was issued by E. F., of attorney for the plaintiff. Or, this writ was issued in person by A. B., who resides at mention the city, town, or parish, and also the name of the hamlet, street, and number of the house of the plaintiff's residence.]
The plaintiff claims [ pounds principal and interest, or] 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 following is a copy :
[Here copy bill of exchange or promissory note, and all indorsements upon it. And also shillings for noting [if noting has been paid], and also pounds for costs. And if the amount thereof be paid to the plaintiff or his attorney within four days from the service hereof, further proceedings will be stayed.
not within such time cause an appearance
Leave to appear may be obtained on an application at the Judges' Chambers, Serjeants' Inn, London, supported by affidavit showing that there is a defence to the action on the merits, or that it is reasonable that the defendant should be allowed to appear in the action.
Indorsement to be made on the Writ after
This writ was served by X. Y. on L. M.
By X. Y.
Notices to the above effect relating to the indorsements of writs under the Act have been placed up in the offices of the Masters of all
the Common Law Courts. No formal Rule of Court has been made, nor does any appear to be necessary; but we are informed that the Judges have approved of these forms.
Review: Smith's Compendium of the Law of Real and Personal Property.
NOTICES OF NEW BOOKS.
A Compendium of the Law of Real and Personal Property, connected with Conveyancing. For the use of Students and Practitioners. By JOSIAH W. SMITH, B.C.L., of Lincoln's Inn, Esq., Barristerat-Law, Editor of "Mitford's Chancery Pleadings," and "Fearne's Contingent Remainders," and Author of "a Treatise on Executory Interests." London: Stevens & Norton. 1855. Pp. 1019.
be of the utmost service to many, if not to most practitioners, aiding them, on the one hand, in judging as to what may be regarded as settled law, and thus saving them from much needless perplexity about clear points; and by suggesting to them, on the other hand, those doubts, distinctions, rules, exceptions, and legal views, of which they cannot be ignorant without the most serious consequences; and serving, in the rapid occasions of daily practice, as a help to the attainment of accurate views, gained from the perusal and comparison of other authors, and from the modern Statutes 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 particutakes, 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, to draw the exact line in this respect; but such has been the principle of selection, although perhaps he may have inserted some matter that he might have properly omitted, and omitted some that he ought to have inserted.
"Upon this principle, he has, on the one hand, excluded all antiquarian and theoretical, and indeed every other kind of disquisition, a mass of obsolete law,-a variety of unsettled questions, all detailed abstracts of cases,and an immense number of points and cases which he did not consider as of general application, or necessary to be retained in the mind, if it were possible to remember them: while, on the other hand, he has been especially anxious to insert those points which affect drafting, as being the points of all others the least capable of being safely left for investigation pro re natá; such, for instance, as cases of construction of common or not unfrequent occurrence. And hence many points have been inserted, not for the purpose of enabling the practitioner to form an opinion without further research, but chiefly for the purpose of putting him on his guard when engaged in preparing deeds and wills, so as to save him from mistakes into which he might otherwise fall, or for giving rise to doubts and questions."
A general text-book is absolutely necessary for the Student, before he can apply himself with profitable study either to the perusal of legal works or to the practice of his profession.
"If well executed by the writer, and well digested by the reader, such a book must also
In considering how far the modern Statutes should be dealt with in a work of this kind, Mr. Smith observes that
"To have given in full all the enactments relating to the subject, would of course have quite overloaded the work, and swelled it out to a very large size. Again, to have noticed all the enactments briefly, appeared to be only of use in apprising the reader that there are enactments of such a general purport and effect, without giving him an accurate view of those enactments. A third mode therefore has been adopted, namely, to treat the Statute Law in the same way as the unwritten law, that is, to notice such only of the enactments as appeared necessary to be borne in mind, as distinguished from those which may be left for investigation pro re nata, and generally (as the only thoroughly satisfactory course) to give verbatim the enactments so noticed, leaving the practitioner to refer to the other enactments as the occasion arises, which he may now readily do, by the help of Mr. Stamp's excellent Index to the Statute Law, a work comprised in one small volume, which has been of the greatest assistance to the writer, but of the merits of which he was unfortunately not aware until he had nearly commenced printing. In many instances where the words of a Statute have
been given verbatim, the writer has prefixed to them an abridged statement, which may serve as some help to the student."
The work is divided into four parts, treating
1. Of the several kinds of Things constituting the subjects of Conveyancing. F 5
Review: Smith's Compendium of the Law of Real and Personal Property.
2. Of the several kinds of Interests in fee simple; 2. Limited fees:-(1.) Base or Things constituting the subjects of Convey-qualified fees; (2.) Fees subject to a condition ancing. subsequent or conditional limitation; (3.) Conditional fees at Common Law; (4.) Fees tail.
3. Of the Title to things constituting the subjects of Conveyancing.
4. Of certain persons and miscellaneous heads of Law connected with Conveyancing-such as executors, trustees, married women, infants, &c.
We consider this volume to be one of especial importance to the student. After he has carefully perused the latest edition of Blackstone's Commentaries, we recommend him diligently and perseveringly to study this compendium of the Law of Real and Personal Property, which we think cannot fail to make him a good conveyancer and enable him to master this difficult branch of our law and practice. He should not quit the perusal of any section until he has fully comprehended all the principles and points it contains. For this purpose he should make his own analysis of each section, as concisely as possible, but sufficiently at a glance to recall the rules and principles which the Author has expounded.
An analysis of the whole work is given by the Author in his introductory chapter, and we subjoin a statement drawn therefrom which will show the comprehensive scope of
2. Things incorporeal, as:-1. Annuities; 2. Rents; 3. Advowsons; 4. Tithes; 5. Commons; 6. Franchises or liberties; 7. Ways, &c. II. The several kinds of interests in things con
stituting the subjects of conveyancing [some of which depend on or are affected by (1.) Conditions, (2.) Limitations.]
First, in things real :
2. Freeholds not of inheritance:-1. Estates for life, specifically so called; 2. Estates tail, after possibility of issue extinct; 3. Estates by the curtesy; 4. Estates in dower, freebench, and jointure.
2. Interests less than freeholds :
1. Estates for years; 2. Estates at will; 3. Interests by sufferance; 4. Chattel interests created for special purposes. 3rd.-1. Interests in severalty.
2. Interests in community:
1. In joint tenancy; 2. By entireties; 3. In coparcenary; 4. In common. 4th.-1. Merely legal interests; and herein of
2. Merely equitable interests or trusts. 3. Both legal and equitable interests. 5th.-1. Vested interests or actual estates: 1. Present vested interests; 2. Future vested interests:-(1.) Vested remainders; (2.) Reversions.
2. Executory interests, or interests only, as distinguished from actual estates, whether created by executory devise, or by executory limitation by way of use: (a) 1. Certain; 2. Contingent.
(b) 1. Contingent remainders; 2. Spring
ing interests; 3. Alternative interests; 4. Interests augmented in a given event; 5. Interests diminshed in a given event; 6. Interests under conditional limitations.
3. Rights of entry or action.
5. Mere adverse possessions.
6. Expectancies of heirs apparent or heirs presumptive.
7. Powers. 8. Charges. 9. Liens.
6th.-1. Absolute or indefeasible interests.
2. Defeasible interests: and herein of mortgages of real property, and estates or interests by statute merchant, statute staple, recognisance, judgment, and elegit. Secondly, in things personal.
1st.-1. Freehold interests (so termed in re 1st.-1. Absolute or unlimited interests.
ference to tenure):
2. Limited interests.
2nd.-1. Interests in severalty.
2. Interests in community. 1. In joint tenancy; 2. In common. 3rd.-1. Merely legal interests.
2. Merely equitable interests.
3. Both Legal and equitable interests. 4th.-1. Vested interests:
1. Present vested interests; 2. Future vested interests, such as vested quasi remainders and reversions, both of which are frequently termed reversionary interests.
2. Executory interests: (a) 1. Certain; 2. Contingent.
(b) 1. Contingent quasi remainders; 2.
Review: Smith's Real and Personal Property.-Diseases Prevention Act.
Springing interests; 3. Alternative interests; 4. Interests augmented in a given event; 5. Interests diminished in a given event; 6. interests under conditional limitations.
3. Choses in action.
4. Expectancies of next of kin.
5th.-1. Absolute or indefeasible interests.
2. Defeasible interests: and herein of mortgages of personal property. III. The title to things constituting the subjects of conveyancing:
2. Some miscellaneous heads of law connected with conveyancing—
1. Waste; 2. Merger; 3. Conversion; 4. Election; 5. Satisfaction.
DISEASES PREVENTION ACT.
18 & 19 VICT. c. 116.
THE provisions of "The Nuisances Removal and Diseases Prevention Act, 1848," amended vention Amendment Act, 1849," in so far as by "The Nuisances Removal and Diseases Pre1. Marriage; 2. Descent, succession, and the same relate to the prevention or mitigation administration; 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. more effectual in that behalf; it is therefore 1. By mere written agreement. enacted, as follows:
2. By deed.
Those deeds which are termed conveyances
1. Common Law Conveyances:-1. Feoffments; 2. Gifts; 3. Grants; 4. Bargains and sales; 5. Leases and underleases; 6. Exchanges; 7. Partitions; 8. Releases; 9. Confirmations; 10. Surrenders; 11. Assignments; 12. Defeasances; 13. Disclaimers.
2. Statutory Conveyances, which (without reckoning feoffments and bargains and sales, when made to uses) are:-1. Covenants to stand seised; 2. Deeds of lease and release; 3. Statutory releases; 4. Statutory grants; 5. Deeds to lead and declare uses; 6. Deeds of revocation of uses; 7. Deeds of appointment under powers; 8. Leases under powers; 9. Bargains and sales under the Fines and Re coveries Abolition Act; 10. Concise conveyances and leases under the Stat. 8 & 9 Vict.
cc. 119, 124.
Deeds other than conveyances. Such are 1. Deeds of covenant or agreement; Bonds; 3. Declarations of trust. Deeds when considered with reference to the purpose to be effected by them, are— 1. Purchase deeds; 2. Mortgage deeds; 3. Marriage settlements; 4. Deeds of indemnity; 5. Composition or creditors' deeds, &c. 3. By matter of Record: 1. Private Act; 2. Royal grant; 3. Fine; 4. Recovery.
4. By voluntary grant and admittance, or by surrender and admittance, or by bargain and sale and admittance, or by recovery, in the case of copyholds. 5. By will.
The local authority for executing this Act shall be the local authority acting in execution of any general Act in force for the time being for the removal of nuisances; s. 2.
The expenses incurred in execution of this Act shall be borne out of the rates or funds administered by such local authority, under the provisions and for the purposes of any such general Act as is referred to in the preceding section; s. 3.
have power of entry for the purposes of this The local authority and their officers shall Act, and for executing or superintending the execution of the regulations and directions of the general board issued under this Act; s. 4.
be threatened with or is affected by any forWhenever any part of England appears to midable epidemic, endemic, or contagious disease, the Lords and others of her Majesty's most honourable Privy Council, or any three Council or one of her Majesty's principal Seor more of them, (the Lord President of the cretaries of State being one,) may, by order made, direct that the provisions herein conor orders to be by them from time to time force in England, or in such parts thereof as tained for the prevention of diseases be put in in such order or orders respectively may be expressed, and may from time to time, as to all orders extend, and in like manner, revoke or or any of the parts to which any such order or tion and renewal as aforesaid, every such order renew any such order; and, subject to revocashall be in force for six calendar months, or for such shorter period as in such order shall be expressed; and every such order of her Majesty's Privy Council, or of any members thereof, as aforesaid, shall be certified under the hand of the Clerk in ordinary of her Ma
IV. Certain persons and miscellaneous heads of law connected with conveyancing : 1. Certain persons connected with convey-jesty's Privy Council, and shall be published ancing
1. Executors and administrators; 2. Trustees; 3. Married women; 4. Infants; 5. Illegitimate children; 6. Persons of unsound mind; 7. Aliens; 8. Corporations.
in the London Gazette; and such publication shall be conclusive evidence of such order, to all intents and purposes; s. 5.
From time to time after the issuing of any such order as aforesaid, and whilst the same