130 The New Edition of Sir Edward Sugden's Vendors and Purchasers. thus adverted to. After stating that it was ruled by many cases that a bidder may be appointed, the author goes on thus :-- to prosecute, as the decree in the criginal suit was reversed, on the ground that no fraud was But the deeree could practised by the seller. 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 mere 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 The the seller. But in a case like Small and AttWheller v. Collier, 1 Campb. Ca. 123. statute 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 ceeds rather upon equitable rules than upon in a late case C. B. Alexander treated it as absolute legal nullity. 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 127., the principle. In the case in question the pur owner's servant made repeated biddings up to chaser had 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 bidding on behalf of the vendor was held to render the sale fraudulent). The authorities, however, preponderate in favour of the validity of a person privately bidding, and the practice is universally adopted, and ought not to be lightly disturbed. It would require a decision of the House of Lords to over-rule the decisions; and it would be better to leave them undisturbed, restricted as the power now is." Vol. 1, p. 32. We shall next take the learned author's opinion as to one of the decisions in the well-known case of Small v. Attwood. The main point in that case is of no great importance in a legal point of view; but the point to which we wish to refer - the power of a purchaser on a sale being set aside to follow the purchase-money,-is of great interest. and to enjoy it as owner, subject ultimately to account, until the accounts were finally settled. By the injunction he obtained the security of the return of his money, as well as retained his lien on the estate for it, and possession of the estate itself. It had never before occurred to any one that such relief could be obtained. If the case had remained undisturbed, it would have introduced a practice of attempting in all such cases to follow the money, and for that purpose of introducing charges and interrogatories into bills, which would tend to great prolixity, and expose every dealing and transaction of life of a defendant, between the receipt of the money and the time of answering Vol. 1, pp. 400, 401. in the first instance. We shall next extract Sir Edward's opinion as to the best mode of examining an abstract. The question is, whether it should be all perused, so as to have a 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; 200,0007. had or whether it be better to examine every been paid long before the bill was filed, and part-step by step-with the greatest care possession had been given to the purchasers of the estate, with which they had acted as owners. They had long had possession, which they still retained, and claimed a lien upon the estate for the portion of the purchase-money paid. After the decree they filed a supplemental bill, stating the payment of the 200,000, and tracing its investment in stock, and the transfer of the stock to a third person without consideration, as it was alleged, and praying that they might, without prejudice to their lien on the estate, be decreed to be entitled to the specific stock; and Lord Lyndhurst, C. B., so decided, and accordingly granted an injunction. This is the only case in which equity followed the purchase-money, and ordered it to be specifically restored. There was an appeal against the order to the House of Lords, which it became unnecessary "1. In regard to the best mode of perusing | an abstract by counsel, opinions differ, and I 1 Prest. Abs. will not presume to decide. 208, vol. 3, p. 59, 191, 201. But I will simply state what always appeared to me the best mode. 2. In the first place, the perusal should, if the length of the abstract will permit of it, be finished at one sitting, although any difficult point of law, the whole bearing of which is ascertained, inay properly be reserved for further and separate consideration. 3. k is not useful to make many notes, for they often distract the attention. In one instance, a counsel, in perusing an abstract, actually inserted a note in the margin opposite to a deed with a serious defect, stating it to be what it 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 may 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. Still 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 himself 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, amongst 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 might 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 separately. Whereverse 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, he may pursue the same method. title against the remainder-man or reversioner If the title be complicated, 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 the 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 admitted, 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, the duration of human life; nor would that speaking generally, an abstract should be pe- rule effect the alleged object in many cases, rused but once, and that once effectually. for example :-in the very case stated 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 difficult 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 insur-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 them. 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 question is, whether the abstract is to be reseller has only a forty years' title, but that duced in like manner. If we suppose that a there have been repeated sales and mortgages, and there is no reason to believe that the title took its root from a tenant for life, or from a We must conclude our extracts by the following valuable remarks as to the length of the title which may now be called for. "In an opinion, or rather argument, written by one of the Real Property Commissioners 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 have been Ibid. 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 so that the title is a common one, although as on them, are of great value. Indeed it is to be remembered, that the whole body of these reports emanate from some of the most learned and eminent men in the profession; and if they had been published as treatises, would immediately have become standard text books. They have, if rightly considered, at least as much authority as any treatise can have, being the reports of the Law Commissioners, and containing the opinions of more than one. Sir Edward Sugden has given them their proper station, and we have no doubt that his example will be generally followed. not force the title upon a purchaser. The danger of a title being disturbed at the end of forty years, in consequence of the sale of the fee by a tenant for life before that period, and which has remained unknown during that time, is not very great. For where a person claiming under a tenant for life begins to act as owner of the inheritance, the attention of the remainder-man is quickly aroused, and the infirmity of the title made generally known. We might make many more extracts as Where the estate is settled upon marriage, the majority of a son soon 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 however, 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; but if 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 tenant 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 ab-in the construction of the late acts founded stract of them, in order to see that the title was not derived under a tenant for life. Sixty years would not, in many cases, meet the danger proposed to be guarded against, and it seems difficult, therefore, now to continue that period as an arbitrary rule, when the object for which it was originally introduced will be effected by a forty years' title. Still, even sixty years may not be sufficiently far to carry the title back; but it seems too much now to say, that every man must produce at least a sixty years' title, because there may have been during all that period, an adverse possession against a tenant for life only. A title commencing with an infirm foundation can generally be detected from something appearing 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 convenient rule will, no doubt, be adopted, and this, taking a middle course, will perhaps "THE art of rising," said Mr. Horatio be to furnish a fifty years title in ordinary Luckless, (the unhappy fate of whose mutcases; there will be but few titles disturbed under a clear title for half a century, where ton chops we have already commemorated,) the art of rising! I wish I had it, but the property has undergone the usual transfers upon sales and mortgages, and the possession alas! I do not at present see my way clear. But where the Here I lie, and for the life of me I cannot has gone along with the title. 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 bered. As Dr. Johnson says, "I shall die wills within forty years; the title should always commence with a document, 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 root 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 the benchers to take them off when they held under a tenant for life; but rarely any difficulty arises on this head, for either the walk through the Inn; and here I lie, resame 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 I sleep out the whole of the " THE ART OF RISING. - The Art of Rising. : 183 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 vows 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 suddenly he 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 I 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," and on 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 sacred gold; it was the first he ever had re- at the bar, is to learn the art of rising." 134 Changes in the Law.-Notices of New Books: Eagle's Magistrates' Companion. CHANGES IN THE LAW IN THE LAST SESSION OF PARLIAMENT. HIGHWAYS AND RAILROADS. 2 & 3 Vict., c. 54. An act to amend an act of the fifth and sixth years of the reign of his late Majesty King William the Fourth relating to highways. [17th August 1839.] 1.-5 & 6 W. 4, c. 50. Proprietors of railroads to maintain gates where any railroad crosses the highway, &c. Penalty 51. for each day's neglect. Whereas by an act passed in the session of parliament holden in the fifth and sixth years of the reign of his late Majesty King William the Fourth, intituled an Act to consolidate and amend the Laws relating to Highways in that part of Great Britain called England," it is amongst other things by the said act enacted, that whenever a railroad shall cross any highway for carts or carriages, the proprietors of the said railroad shall make and maintain good and sufficient gates at each of the said crossings, and shall employ good and proper persons to attend to the opening and shutting of such gates, so that the persons, carts, or carriages passing along such road shall not be exposed to any danger or damage by the passing of any carriages or engines along the said railroad, and any complaint for any neglect in respect of the said gates shall be made within one month after the said neglect to one justice, who may summon 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 offending shall forfeit any sum not exceeding five pounds: and whereas it is also by the said act further enacted, that nothing in this act contained shall apply to any turnpike roads, except where expressly mentioned, or to any roads, bridges, carriageways, cartways, horseways, bridleways, footways, causeways, churchyards, or pavements which now are or may hereafter be paved, repaired, or cleansed, broken up or diverted, under or by virtue of the provisions of any local or personal act or acts of parliament: and whereas it is deemed expedient to amend the said provisions in the said act, and to extend the same to turnpike roads in England: be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons in this present parliament assembled, and by the authority of the same, that wherever a railroad crosses or shall hereafter cross any turnpike road or any highway or statute labour road for carts or carriages in Great Britain, the proprietors or directors of the company of prietors of the said railroad shall make and maintain good and sufficient gates across each end of such turnpike or other road as aforesaid at each of the said crossings, and shall employ good and proper persons to open and pro 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 complaint for any neglect in respect of the said gates shall be made within one calendar month after the said neglect to any justice of the peace, or if in Scotland to the sheriff of the County, who may summon the party so complained against to appear before them or him at the next petty session or court to be holden for the district or division within which such gates are situate, who shall hear and decide upon the said complaint; and the proprietor or director so offending shall for each and every day of such neglect forfeit any sum not exceeding five pouuds, together with such costs as to the justices or sheriff depute aforesaid before whom the conviction shall take place shall seem fit. 2. How penalties shall be recovered and applied.—And be it further enacted, that the penalties by this act imposed, and the costs to be allowed and ordered by the authority of this act, shall in England be recovered and applied in the same manner as any penalties and costs under the said act, and in Scotland shall be recovered and applied to the maintenance of the statute labour roads within the district where the offence is committed. 3. Commencement of act.-And be it further enacted, that this act shall commence and take effect from and after the thirtieth day of September one thousand eight hundred and thirtynine. NOTICES OF NEW BOOKS. The Magistrate's Pocket Companion; containing a Practical Exposition of the Duties of a Justice of the Peace out of Quarter Sessions, alphabetically arranged. By William Eagle, of the Middle Temple, Esq., Barrister at Law. London: Shaw & Sons. 1839. a THIS work is intended to exhibit, in a compendious form, and as a Hand-book, if not Pocket Companion," the Law and Practice of a Justice of the Peace acting out of Quarter Sessions, and to remedy in some degree, the inconvenience of seeking information from that voluminous work, "Burn's Justice." Mr. Eagle's book was published after the close of the last session of parliament, and therefore includes the law to which it relates in its present state. Conciseness being a main object of the work, it was to be expected that a large part of the old law would be stated with the utmost brevity; but the important alterations of recent date have been digested somewhat fully. |
