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The New Edition of Sir Edward Sugden's Vendors and Purchasers. thus adverted to. After stating that it was to prosecute, as the decree in the criginal suit ruled by many cases that a bidder may be was reversed, on the ground that no fraud was appointed, the author goes on thus : practised by the seller. But the deeree could
hardly have been maintained.
It was a con“But Lord Tenterden again opened the siderable argument against the relief, that it question at nisi prius, and expressed extra- had never been administered, and the inconvejudicially the strong inclination of his opinion, nience is obvious. In the case of a inere that if a person be employed with a view to naked fraud, which altogether vitiates a consave the auction duty, the sale is void, unless it tract both at law and in equity, there is not be announced that there is a person bidding much difficulty in attaching the money, if it for the owner; the act itself is fraudulent. can be traced, as it never of right belonged to Wheller v. Collier, 1 Camplı. Ca. 123. The the seller. But in a case like Small and Allstatute was made for a different purpose, with wood, the relief, although granted, and upon a view to the duty only, and could not be made the ground of a fraudulent concealment, proto sanction what was in itself fraudulent. And ceeris rather upon equitable rules than upon in a late case C. B. Alexander treated it as absolute legal pullity. Much arrangement is reclear that the employment of a puffer vitiated quired to do justice between the parties in such the sale. Rex v. Marsh, 3 You. & Jer. 331. a case, and the following of the money does But it was not necessary to decide that point. not seem to be justified by the practice of the And in Crowder v. Austin, 3 Bing. 368 (a horse Court, nor can it perhaps be supported upon cause), after a bona fide bidding of 121., the principle. In the case in question the pur. owner's servant made repeated biddings up to chaser bad possession of the seller's estate, 231. That appears to have been a mere fraud, and had had that possession for a long time, but the Court is reported to have been inclined and dealt with it as owner, and continued to to adhere to Lord Mansfield's opinion in Box- retain it, and insisted upon his right to do so, well v, Christie, Cowp. 395, (in which a private and to enjoy it as owner, subject ultimately to bidding on behalf of the vendor was held to aecount, until the accounts were finally settled. render the sale fraudulent). The authorities, By the injunction he obtained the security of however, preponderate in favour of the validity the return of his money, as well as retained of a person privately bidding, and the practice his lien on the estate for it, and possession of is universally adopted, and ought not to be the estate itself. It had never before occurred lightly disturbed. It would require a decision to any one that such relief could be obtained. of the House of Lords to over-rule the de. If the case had remained undisturbed, it would cisions; and it would be better to leave them have introduced a practice of attempting in undisturbed, restricted as the power now.is.” all such cases to follow the money, and for
Vol. I, p. 32. that purpose of introducing charges and inWe shall next take the learned author's terrogatories into bills, which would tend to opinion as to one of the decisions in the great prolixity, and expose every dealing and
transaction of life of a defendant, between the well-known case of Small v. Attwood. The
receipt of the money and the time of answermain point in that case is of no great im- ing" Vol. 1, pp. 400, 401. portance in a legal point of view; but the point to which we wish to refer – the power nion as to the best mode of examining an
We shall next extract Sir Edward's opiof a purchaser on a sale being set aside to
abstract. follow the purchase-money, -is of great should be all perused, so as to have a
The question is, whether it interest.
general notion of its contents, and then “In Small v. Attwood, You. 407, the pur. gone over a second time more carefully : chase was rescinded by decree; 200,0001. bad or whether it be better to examine every been paid long before the bill was filed, and possession had been given to the purchasers part - step by step-with the greatest care
in the first instance. of the estate, with which they had acted as owners. They had long had possession, which “1. In regard to the best mode of perusing they still retained, and claimed a lien upon the an abstract by counsel, opinions differ, and I estate for the portion of the purchase-money will not presurne to decide. | Prest. Abs. paid. After the decree they filed a sup- 208, vol. 3, p. 59, 191, 201. But I will simplemental bill, stating the payment of the plı state what always appeared to me the 200,0001., and tracing its investment in stock, best mode. 2. In the first place, the perusal and the transfer of the stock to a third person should, if the length of the abstract will perwithout consideration, as it was alleged, and mit of it, be finished at one sitting, although praying that they miglit, without prejudice to any difficult point of law, the whole bearing of their lien on the estate, be decreed to be en- which is ascertained, inay properly be reserved titled to the specific stock; and Lord Lynd- for further and separate coosideration. 3. It hurst, C. B., so decided, and accordingly is not useful to make inany notes, for they granted an injunction. This is the only case often distract the attention. In one instance, in which equity followed the purchase-money, a counsel, in perusing an abstract, actualy inand ordered it to be specifically restored. serted a note in the margin opposite to a deed There was an appeal against the order to the with a serious defect, stating it to be what it House of Lords, which it became unnecessary | ought to have been, and so the objection was The New Edition of Sir Edward Sugden's Vendors and Purchasers. 131 missed. His mind was engaged in making / sion adverse to a tenant for life will not run the note, and as he knew how the instrument on against a remainder-man, or reversioner, ought to have been framed, he inserted what so that although a tenant for life inay be barred was not contained in the abstract--a fatal by an adverse possession of twenty years, it error, but one not unlikely to occur in a mo- would, except in the case specified in the 20th ment of absence. 4. Stili a man should not section, require another period of adverse posincumber himself with unnecessary details. session, commencing from the death of the He may save hiniself much unnecessary la- tenant for life, to bar a remainder-man or rebour by a little method. He should have a versioner. It is a mistake therefore, it is said, book in which he should write his opinion, and at present a very prevalent one, arnongst and there should be a margin. He should professional gentlemen who have not duly conwrite his opinion as he proceeds, reserving, if sidered the subject, to suppose, that in consenecessary, any important point for subsequent quence of the new Statute of Limitations, a consideration. In the margin, he should note purchaser will not be warranted in requiring every term of years created, and every assign the abstract to go so far back as under the old ment of it; thus 1000 years, fol. 6, fol. 18, system. He had known an instance of a person fol. 30. Nothing more is requisite where being tenant for life for more than eighty years. there is a regular deduction, and he can at Such a person inight have been dispossessed at once, when he comes to deal with the terms, the time when his right first accrued ; an adrefer to the title to them sepa ely. Where verse possession against him during the whole there is a long deduction of a legal estate of period of his life, would not have made a good inheritance, lie inay pursue the saine method. title against the remainder-man or reversioner If the title be coinplicated, he may leave a under the old law, nor will it do so under the blank page in his book for references to the new law. It is a common notion, that the abstract, and queries to be considered. With present length of abstracts is with reference to some such exceptions he will find it the best ihe limitation of sixty years. This, it is said, is and surest method of arriving at a just con- quite a mistake, it is with reference to the duraclusion, to trust to his view of the title on the tion of human life, and so long as the law will face of the abstract itself, without incumber- not allow a remainder-man, expectant on an ing himself with or relying upon notes. 5. It estate for life, to be barred by a possession admay sometimes be useful to glance the eye verse to the tenant for life, a purchaser will be over the abstract in the first place, in order to entitled to require a title to be shown for the obtain a general view of the title, and expe- same period as heretofore under the old law. rience will rapidly point out when a subse. Now it cannot be adınitted, that the sixty quent part of the abstract may be looked into years was a period adopted with reference to advantageously before its proper turn ; but, ihe duration of human life ; nor would that speaking generally, an abstract should be pe. rule effect the alleged oliject in inany cases, rused but once, and that once effectually. for example :-in ihe very case staied and The party should never pass on until he tho- reasoned upon in the above argument, the term roughly comprehends what he has already of sixty years was, no doubt, adopted strictly read; the advancing in a diflicult title, in with reference to the time allowed for a real order to comprehend what you have passed action; and although it did not provide against and do not understand, often leads to insure all claimants, some of whose rights would not mountable difficulties. 6. It is the duty of have been barred by the old statutes within that counsel to see that the parcels are correct in period ; yet as a purchaser, in the absence of the several instruments, and this particularly any trace of a claim, was forced to be satisfied should be followed up, step by step, when the with a moral certainty of a good title, and as description can often be detected and recon- the term of sixty years was of sufficient duraciled, whilst npon a general view of them ittion to meet any probable outstanding claim may be deemed impossible to connect then. depending upon the duration of even a long 7. In perusing an abstract, it should not be life ; that time was considered sufficient as well taken for granted that the dates are chrono- to give to a purchaser the benefit of the Statute logically arranged, but the fact should be as of Limitations, as to protect him against any certained, although this will not, as to new unknown claimants, who, after all, might not titles, often be important now that a will be barred by the statutes. Now the time is allowed to operate on after-acquired pro- within which claims in general can be made, is perty.” Vol. 2, pp. 68—69.
reduced from sixty to forty years, and the We must conclude our extracts by the question is, whether the abstract is to be refollowing valuable remarks as to the length seller has only a forty years' title, but that
If we suppose that a of the title which may now be called for.
there have been repeated sales and mortgages, “In an opinion, or rather argument, written and there is no reason to believe that the title by one of the Real Property Commissioners took its root from a tenant for life, or from a since the act passed, with a view to be pub- person who claimed under one, it would seem lished, in order to establish a right still to a to be clear that the purchaser would be comsixty years' title. (Mr. Brodie's opinion, pelled to accept the title, although before Hayes's Introd. to Conveyancing, 230; and see the late statute the title would bave been Thid. 193; and see the opinion in Purvis v. unmarketable. But if there is any reasonable Rayer, post, 147. It is observed, that posses- ground for suspicion on this head, equity would
The Art of Rising.
not force the title upon a purchaser. Tbe so that the title is a common one, although as danger of a title being disturbed at the end of to the copyholds supported by the copies of forty years, in consequence of the sale of the court roll, or if a copyhold has been held by fee by a tenant for life before that period, and itself, the documents of title are so short chat which has remained unknown during that time, tbe abstract is generally a small one, and no is not very great. For where a person claiin-objection is made by the seller to beginning ing under a tenant for life begins to act as with a date sufficiently early to satisfy a purowner of the inheritance, the attention of the chaser."-Vol. II. p. 135, 139. See further as remainder-man is quickly aroused, and the to this point, antè, p. 49. infirmity of the title made generally known.
We might make many more extracts as Where the estate is settled upon marriage, the inajority of a son soou leads to a discovery of useful and interesting as those which we the father's fraud. In the general run of cases, have selected appear to us to be, but we hutever, the vendor will be in the possession have already exceeded our usual limits. It of documents spreading over sixty years; and will be seen that the author has not thought then the question arises.--Is the seller bound it beneath him to enter into the most minute to abstract them? A seller ought not to stickle particulars, where these would be useful or over-much upon this point, where the prior serviceable to the student or practitioner. title would not lead to inuch expense ; a clear title is shewn for forty years, 'without We observe also, that he frequently refers to any thing upon the face of it to lead to an in the reports of the Real Property Commisference that it is derived under a tenane for sioners, as authorities, commenting however life, I should apprehend that the purchaser on their opinions, when he considers them inwould be compelled to accept it, but he would correct; this is as it should be. We have be entitled, if he pleased, to look at the earlier always thought that their reports, especially deeds, although he could not require an ah in the construction of the late acts founded stract of then), in order to see that the title
Indeed it is to was not derived under a tenant for life. Sixty on them, are of great value. years would not, in many cases, meet the be remembered, that the whole body of these danger proposed to be guarded against, and it reports emanate from some of the most seeing difficult, therefore, now to continue that learned and eminent men in the profession ; period as an arbitrary rule, when the olject and if they had been published as treatises, for which it was originally introduced will be would immediately have become standard effected by a forty years' title. Still, even sixty years may not be sufficiently far to carry sidered, at least as much authority as any
text books. They have, if rightly conthe title back ; but it seems too inuch now to say, that every man must produce at least a treatise can have, being the reports of the sixty years' title, because there may have been Law Commissioners, and containing the opiduring all that period, an adverse possession nions of more than one. Sir Edward Sugden against a tenant for life only.. A title com has given them their proper station, and we mencing with an infirm foundation can gene- have no doubt that his example will be generally be detected from something, appearing rally followed. on the face of it. It is not probable that the Courts will be called upon to lay down a general rule upon this subject; but in practice, a
THE ART OF RISING. convenient rule will, no doubt, be adopted, and this, taking a middle course, will perhaps be to furnish a fifty years title in ordinary Luckless, (the unhappy fate of whose mut
“ The art of rising." said Mr. Horatio cases ; there will be but few titles disturbed under a clear title for half a century, where ton chops we have already commemorated) the properly has undergone the usual transfers ' the art of rising! I wish I had it, but upon sales and mortgages, and the possession alas ! I do not at present see my way clear. has gone along with the title. But where the Here I lie, and for the life of me I cannot seller is in possession of earlier documents, get up; Pump Court is never very bright, clearly he could not withhold them, proving and we have had a succession of mornings his title by possession, grants of leases, and
which its oldest inhabitants never rememthe like, and then commence with deeds or wills within forty years; the title should al. bered. As Dr. Johnson says, “I shall die ways commence with a docuinent, if the seller convinced that the weather is uncertain." have one, and a purchaser can insist upon it. It must, I fear, be getting late, but I cannot In regard to copyholds, the ront of the title tell whether my laundress has been here would be good at forty years back, for there yet. I hear nothing but the clank of those can seldom be any difficulty in ascertaining disagreeable pattens, which the washerwhether a life estate is outstanding in copy: women will wear, in spite of the request of holds, or whether the alleged inheritance is held under a tenant for life; but rarely any
the benchers to take them off when they difficulty arises on this head, for either the walk through the Inn ; and here I lie, re89ine settlements include the copyhold as well mote from all the world, with not one soul as the freehold, where they are sold together, to care whether / sleep out the whole of the
day or no. I wish some one would make ceived ; it must be set apart and handed me get up, I would go through a good deal: down to his children as an heir-loom, for I wish to be thoroughly roused. I have children he might now think of. Jenkins been all but out of bed several times, but and Snagg! How many soft emotions were have only ended by drawing the clothes raised by the former name. It might not be a tighter round me. I wish I had more reso- very musical one, but it was English,-Saxon lution, it is certainly a great deficiency in to the back bone. If the respectable house my character. I have many good points, of Jenkins and Snagg took him by the hand, but I cannot get up in the morning. I his fortune was made. All this did he make rows in vain every night; I go to bed ejaculate in his shirt and nether habiliments, early on purpose ; this I am able to accom- when euddenly be thought of the mysterious plish, but I cannot get up a bit the sooner. slip of paper this cause stands No. 4 in See that window now! see that horrid fog the list to-day.” The deuce it did ! and he looking in at me! Could any one even had not read a word of it. What was to be imagine a morning like this ? Nothing can done? Now he took the brief up, and read a be worse except to-morrow morning. Yet little of it: next he put on a boot. Then I have heard that a man can accustom him- he read again the interesting indorsement, self to get up at four if he tries, and here l in which his own name appeared so conam snug at half-past nine. Yet, if I had spicuously; then he began to shave. All this any inducement to rise, I think I might be took up some time, and his anxiety rather able. If I had any thing to work at, then retarded than forwarded his operations. In how willingly I would stir ; but as it is, less than an hour, however, he was dressed get up I cannot, I have not " the art of and ready, but he had had no breakfast. rising."- At this moment, something with Appetite indeed, he felt but little: he was a heavy sound, was dropped through the too much pleased, too nervous to eat. valve of the outer door, and fell into the Taking up his valued brief in one hand, and passage. This might not have attracted a crust of bread in the other, he told his any observation from Mr. Luckless, but it little boy, who had by this time arrived, was accompanied with a clink, which even to with somewhat of an important air, that he his unaccustomed organ conveyed a sound was going to the Common Pleas, and thither which' nature has contrived to be one of the did he bend his path with hasty steps. He most pleasing to the human ear. To throw shouldered his way through the groups of back the bed-clothes, to seize his trowsers, to witnesses, clerks, and idlers, generally found put them on, to rush to the passage, was, in loitering about the doors of the court, the language of the most fashionable novels, slipped on his wig and gown, and pushed “the work of a moment.” And what did Mr. into court with a look which seemed to say Luckless see ? Could it be! If it was not that the affairs of this world rested pretty the thing itself, it was certainly very like it. much on his shoulders. He first ran to the It had the exact shape of a brief. He turned paper of causes, and found, with dismay, that it on its face; it was a brief ! and thus was the cause of Wolf v. Lamb was actually on, it endorsed, “In the Common Pleas, Wolf v. the jury were in truth in the act of delivering Lamb. Brief for the defendant. Mr. Horatio their verdict. He was just in time to hear Luckless. Two guas. With you, Mr. Ser the foreman say, we find for the plaintiff, jeant Talfourd. - Jenkins and Snagg," andon damages 1601," and to encounter in the a slip of paper which accompanied it there well of the court the displeased face of his were these words, “ This cause stands No. client, Mr. Jenkins. He had no opportunity 4, on the list for to-day.” And where were to speak with his leader, who was in the the two guineas? Was he deceived in the next cause which was called on. He found sound of money ? No, they were neatly that of the three causes which had stood wrapped up in a piece of white paper, and before that of Wolf v. Lamb, the first had they lay on the floor. How beautiful they been undefended; in the second the record looked! how superior to any other sovereigns had been withdrawn, and the third was the gold seemed ! and how much more lovely submitted to arbitration. Mr. Jenkins than any other silver the two shillings came round to him for his brief which he looked ! They were in fact well worth half a had scarcely been able to read, and on recrown each, and he wouldn't have parted ceiving it, said to him with gravity, but with with them on any account for that sum. some good nature, “ Allow me, Mr. LuckHow charming her Majesty's profile looked less, as an old member of the profession, on them as he turned them over! This was to remind you, that the only way to get on macred gold; it was the first he ever had re- at the bar, is to learn the art of rising."
IN THE LAST SESSION OF PARLIAMENT.
134 Changes in the Law.-Notices of Now Books : Eagle's Magistrates' Companion. CHANGES IN THE LAW shut such gates, so that the persons, carts, or
carriages passing along such turnpike or highway shall not be exposed to any danger or damage by the passing of any carriages or
engines along the said railroad; and any comHIGHWAYS AND RAILROADS.
plaint for any neglect in respect of the said 2 & 3 Vict., c. 54.
gates shall be made within one calendar month An act to amend an act of the fifth and sixth after the said neglect to any justice of the
years of the reign of his late Majesty King peace, or if in Scotland to the sheriff of the William the Fourth relating to highways. County, who may summon the party so com[17th August 1839.)
plained against to appear before them or him
at the next petty session or court to be holder 1.-58, 6 W. 4, c. 50. Proprietors of rail. for the district'or division within which such roads to maintain gates where any railroad
gates are situate, who shall hear and decide upon crosses the highway, 8c. Penalty 51. for the said complaint; and the proprietor or dieach day's neglect.-Whereas by an act passed rector so offending shall for each and every in the session of parliament holden in the day of such neglect forfeit any sum not exfifth and sixth years of the reign of his late ceeding five pouuds, together with such costs Majesty King William the Fourth, intituled as to the justices or sheriff depute aforesaid “ an Act to consolidate and amend the Laws before whom the conviction shall take place relating to Highways in that part of Great shall seem fit. Britain called England,” it is amongst other 2. How penalties shall be recovered and apthings by the said act enacted, that whenever plied.-Aná be it further enacted, that the pea railroad shall cross any highway for carts or nalties by this act imposed, and the costs to be carriages, the proprietors of the said railroad allowed and ordered by the authority of this shall make and maintain good and sufficient act, shall in England be recovered and applied gates at each of the said crossings, and shall in the same manner as any penalties and costs employ good and proper persons to attend to under the said act, and in Scotland shall be the opening and shutting of such gates, so that recovered and applied to the maintenance of the persons, carts, or carriages passing along the statute Jabour roads within the district such road shall not be exposed to any danger where the offence is committed. or damage by the passing of any carriages or 3. Commencement of act.-And be it further engines along the said railroad, and any com-enacted, that this act shall commence and take plaint for any neglect in respect of the said effect from and after the thirtieth day of Sepgates shall be made within one month after the tember one thousand eight hundred and thirtysaid neglect to one justice, who may summon nine. the party so complained against to appear before the justices at their next special sessions for the highways, who shall hear and decide upon the said complaint, and the proprietor so NOTICES OF NEW BOOKS. offending shall forfeit any sum not exceeding five pounds : and whereas it is also by the said The Magistrate's Pocket Companion; con act further enacted, that nothing in this act contained shall apply to any turnp roads,
tainting a Practical Exposition of the except where expressly mentioned, or to any
Duties of a Justice of the Peace out of roads, bridges, carriageways, cartways, horse
Quarter Sessions, alphabetically arranged. ways, bridleways, footways, causeways, ehurch- By William Eagle, of the Middle Temple, yards, or pavements which now are or may Esq., Barrister at Law. London: Shaw hereafter be paved, repaired, or cleansed, & Sons. 1839. broken up or diverted, under or by virtue of the provisions of any local or personal act or This work is intended to exhibit, in a comacts of parliament: and whereas it is deemed pendious form, and as a Hand-book, if not expedient to amend the said provisions in the a “ Pocket Companion,” the Law and Pracsaid act, and to extend the same to turnpike tice of a Justice of the Peace acting out of roads in England: be it therefore enacted by Quarter Sessions, and to remedy in some the Queen's most Excellent Majesty, by and with the advice and consent of the Lords spi- degree, the inconvenience of seeking inforritual and temporal, and Commons in this pre
mation from that voluminous work, “Burn's sent parliament assembled, and by the autho- Justice.” rity of the same, that wherever a railroad Mr. Eagle's book was published after the crosses or shall bereafter cross any turnpike close of the last session of parliament, and road or any highway or statute labour road therefore includes the law to which it refor carts or carriages in Great Britain, the lates in its present state. Conciseness proprietors or directors of the company of pro; being a main object of the work, it was to prietors of the said railroad shall make and inaintain good and sufficient gates across each be expected that a large part of the old law end of such turnpike or other road as afore- / would be stated with the utmost brevity; said at each of the said crossings, and shall but the important alterations of recent date employ good and proper persons to open and have been digested somewhat fully.