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Presentation to a Benefice, &c. - The Student's Corner.

sequent statules, every person professing the the patronage of the Protestant co-patron. For Roman Catholic religion, it follows that all by section 5 of the 1 W. & M., the chancellor which was intended to be effected by the legis. and scholars shall not present or nominate any lature is completely accomplished, where there person who shall then have any other benefice are several joint-tenants or tenants in common with cure of souls, under pain of the presentation of the right of patronage, by holding the sta- being utterly void. And again by sect. 6, it is tute in those cases to affect no more than the enacted that no person so presented to any benesimple disability of all the co-patrons who are fice with cure of souls, shall be absent from the Roman Catholics. For if the right of presen- same above the space of sixty days in any one tation, by the operation of the disabling clause, year, under the penalty that the benefice shall bebecomes limited to the protestant co-patrons come void. And these two restrictioos, which are only, the avoiding of any popislı bias or influ. very properly placed under the power of preence in the selection of an incumbent, which sentation, when the university takes the whole, is the real object of the statute, is attained as throw a burden upon the right of presentation completely as if the right of presentation as to belonging to the Protestant co-patron, which the share or portion of the Roman Catholic did not exist before. And as there could be no co-patron is given over to the universities. possible reason for the enactment, which should There is therefore no necessity, in order to operate against the rights of a Protestant coeffectuate the object of the legislature, that the patron, we think these clauses afford a key to presentation in such case should be held to ihe meaning of the statute, and shew that the vest in the universities; and the question legislature had nothing in view beyond giving therefore, becomes this, whether the words of the power to the universities to present, wliere, the statute require that interpretation. And by ihe recusancy of the patron, or all the upon this point it appears to us there is a patrons, under the same title, the whole power marked distinction between those words of the of presentation would devolve on them. Upon clause which confer the presentation on the the whole therefore, we think that the case of university and those of the disabling clause. the transfer to the universities of the power to The clause in the statute of James, which present, where one or some only of the cogives the presentation to the university, enacts patrons are disabled, is either a cusus omissus in " that the university shall have the presentation ihe statute, and then we cannot extend the when it shall happen to be void during such statute to comprehend it; or that the legisla. time as the patron thereof shall be and remain cure designedly excluded it, or confined the a recusant convict as aforesaid;" and although vesting of the power of presentation in the these words are not repeated in the statutes universities to a vesting of the entire right: of William & Mary and of Anne, still we con- in either of which cases the judgment must be sider them as virtually incorporated therein, for the plaintiff. And by this construction no as a direct reference is made in both the latter injury can be occasioned in any case to the statutes to the statute of James, and they are ordinary, who at all times las a clear course to declared to have been passed, in order to carry follow, perfectly free from all doubt, whereby into effect the intention of the former law. he can never be treated as a disturber, viz, the And we cannot but think that it will give full admitting and instituting the presentee of the force and effect to this transferring or vesting one Protestant co-patron; for, according to Co. clause of the statute, if it is considered as ex. Litt. 186, 6., “if one joint-tenant, or tenant in tending no further than to the case where the common present severally, the ordinary way patron, if a sole patron, is a Roman Catholic, either admit or refuse to admit such a preor where all the patrons, if there are several sentee, unless they join in presentation ; and claiming under the same title, are of the same after six months, he way in that case present persuasion. And this observation is entitled to by lapse.” Judgment for the plaintiff. Ed. inore weight when it is considered that the wards v. The Bishop of Exeler, 5 Bing. N. C. statute of James gives no interest, but a power 652. only, to the universities, as is observed by Hobart, C. J., in the case of Duncombe v. The University of Oxford, Winch. 11. And it is THE STUDENT'S CORNER. well established that the words creating a power must be strictly interpreted : and undoubtedly it will be found, in all the cases and Sir, precedents which have occurred in Courts of I PERCEIVE in the Legal Observer of 28th Law, that the claim of the universities has been December, page 169, a letter entitled “Wills made only where there has been a sole patron Act,” which gives a brief statement of a dis. who was a recusant convict. (See Winch's cussion that lately arose respecting a derise Entries 771, Lutwyche 1100, in a quare im- under rather peculiar circumstances, the writer pedit against the Chancellor, &c. of the Uni- concluding by saying that he should feel conversity of Cambridge; the case in Hob. 126, and siderably indebted to any of your contributors that in Winch's Rep. 11.) And so far as we have who might deem it worth while to state any been able to search, no precedent is found of a argument which supported the doctrine therein claim by the university under a joint right to laid down. present with a Protestant co-patron. But, still Upon reference to the case it will be obfurther, the interpretation contended for on the served that a father devises to his son in fee part of the defendants, would work an injury to simple, who dies in the life-time of his father,


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On the Leyality of Sheriffs Pounduge.

231 Iraving previously by his will disposed in ge- every remuneration; anl that the saving neral words of all his real estate to an entire clause of the table does not help the clairn of stranger in blood. The son, when he died, left poundage, it not being for a duty; and that acissue a son, who was alive at the death of his cidental omission of so important a charge as grandfather. It was contended that the grandpoundage, in a table which would naturally son had no interest in the estate, but that the be looked to as a perfect guide in all commun devisee of the son was entitled to it; and the cases, is improbable. ground upon which such opinion was formed, For the claim, a duty may perhaps be atwas 1 Vict. c. 26, s. 33. This is a brief outline tempted to be shewn, on which to found the of the suliject which has given rise to doubis claiin of poundage; and of course, Davies v. and discussion.

Griffiths will be cited to shew that the act did The above-mentioned clause in the act de- not intend to meddle with poundage. serves particular notice, for it is not the issue On the whole, I am by no means convinced of the deceased devisee or legatee who is put of the legality of poundage; but leaving the into his place to receive the bounty of the question of legality, we come to what must and teslator ; but it is the person who would have ought to be the ultimate question. Do the been entitled to receive it if the deceased devisee sheriff and his officers receive more than a or legatee had survived the testator and died proper reinuneration if not, tho' an adden. shortly afterwards.

dum to the table would in that case appear deSuppose, therefore, that the deceased devisee sirable) let us rest satisfied with the decision or legatee had left a will, and disposed of the if they do, then (whether the charge of pound property intended for him by his father's will, age be legal or illegal) by all means let “A his legalees would be entitled to it as such, Country Attorney,” and others competent to though they might be strangers in blood. judge, use their efforts to obtain a reduction. Security would be effected, therefore, in order

F. W. D. to prevent disappointment, where any legatee er devisee, being a child or other issue of the Sir, bestator, die in his lifetime, leaving issue, whoin It gives me great satisfaction observing the the testator might wish to substitute for the letters of your corresdondents on this subject, deceased person, by soaking a codicil to his and inasmuch as I entirely agree with them, will, expressly giving to them in unequivocal as to the injustice, not to say illegality, of such terms, the property which had been given to a charge as that set up by the sheriffs for exibe deceased.

ecuting a ca. sa.; for doing which their offi, To support the doctrine laid down which the cers are paid a caption fee, (which in itself is anthor of the letter alludes to, it must be shewn quite sulficient) but they must add a charge that the son at the time of making his will, was for poundage, which is, as I shall be able to aware of the quo animo" with which his shew, wholly illegal according to the I Vic. c. father's will was formed, else if a contrary 57, ss. 2 & 3, which enacts " that it shalb be opinion be inaintained, it would be allowing the lawful for sherit's or their officers to receive son (the devisee in fee) the power of devising such fees, and no more, as shall be allowed by an estate, in which at the inoinent of his death any taxing officer of the Courts of Law at Westhe had not the shadow of an interest of any ininster, under the sanction and authority of kind, seeing that the devisor (his father) was the said Courts respectively;" and then it goes actually living. And most of your readers on to say that sheriffs or their officers taking poust doubtless be aware that “nemo est hæres fees not allowed, or greater fees than are rirentis.

G. D. allowed, shall be guilty of a contempt, and

shall be punished accordingly.”

Now Sir, upon reading this, every lawyer ON THE LEGALITY OF SHERIFFS' must clearly see that the charges of the sherid POUNDAGE.

for executing a cu. sa. are to be at fixed rates,

or such charges as a Master shall allow on taxSir,

ation; and Sir, I would ask is there to be As the letter of “Another Country Attor- found way such charge as that of pounduge on ney,” in your number for the 14th December, a ca. sa. in any rule or order of a court or seems to call for the expression of my assent judge? I subunit not; neither is it allowed on or dissent, I trouble you once more.

taxation, for the best of reasons; because the The decision in Davies v. Griffiths is cer- charges for an execution are not included in tainly quite against any former view; but, a bill of costs at all, they being in the case of a cannot help still entertaining some doulot, and f. f«. levied by the sheriff on the property of own I am not convinced by the observations of the debtor; in that of a ca. 816. the debtor the judges, as reported, 4 Mees. & Welsby should pay, and not the creditor, who of all 377.

parties concerned should be entirely exoneAgainst the claim of poundage it may be rated, but who alas, is too often saddled with arged: that the “N. B.” to the table inform this said poundage, because, forsooth, it is cusing sheriffs that by the act they are punishable toinary that he should pay it. for conteinpt if they "extort, demand, take, However, Sir, the profession have the remedy accept or receive any fee, gratuity, or reward in their own hands, by refusing to pay it. If not hereby (by the table) allowed,” clearly such a claim were attempted to be enforced, it sliews that the judges'intention was to provide would, I am assured, uierly fail. J. A.



Questions at the Hilary Term Examination.

Where a landlord grants a mortgage, and

afterwards lets the premises by lease or

at will, can the mortgagee distrain for Hilary Term, 1840.

rent if the tenant has not attorned to him, or what reinedy has he against the

tenant ? and would the remedy be the 1. PRELIMINARY.

same if a lease had been granted of the Where did you serve your clerkship?

premises before the mortgage ? and if State the particular branch or branches of

not, what would be the difference ? the law to which you have principally

III. CONVEYANCING. 'applied yourself during your clerkship. Mention some of the principal law books What are the denominations of the several you have read and studied.

parts of a deed of conveyance by release? and state the form to prevent dower ?

What are the usual covenants for title en. II. COMMON AND STATUTE LAW, AND PRAC

tered into by a vendor in his conveyance

to a purchaser of a fee simple estate ? Can the judges amend defects in records What is the difference between an estate in

after judgment given ? if so, how must fee simple, and an estate in tail general ? it be done ?

How far back has a purchaser of land a right In what cases may the judge certify to de. to require the title thereto to commence ?

prive the plaintiff of costs, and when and is it customary for the vendor or the pur

how must his certificate be obtained ? chaser to bear the expence of preparing If one of several defendants, who defended the abstract of the title to the estate to

jointly, be acquitted, will he now, as for- be conveyed ? and which, according to merly, be restricted to forty shillings only custom, bears the expence of the confor his costs, or in what proportion will veyance ? he be entitled ?

What is the difference between a freehold In what cases may a defendant be now held and a copyhold estate?

to bail ? and how must you proceed ? If a copyhold estate is to be the subject of If a feme sole obtain judgment and marry a conveyance, by what means is it usually

before execution, what must be done in conveyed ? order to execute the judgment ?

What is the meaning of an assignment of a Where an infant joins an adult in a warrant term to attend the inberitance ?

of attorney, is it wholly void, or to what If an outstanding term has never been asextent?

signed to attend the inheritance, at whose Has a copyhold tenant of a manor a right expence is such assignment to be made ?

to an unqualified inspection of the court In what respect does an estate limited to rolls and books of the manor ? and if so, joint tenants in fee, and tenants in combefore or pending action ?

mon in fee, differ? In what cases may cattle be impounded? In what respect does an incorporeal heredi

and if impounded for an excessive sum, tament differ from a corporeal hereditawhat are the remedies ? and against the ment? party impounding, or against the pound. Who are incapable of making a will ? keeper ?

What are the requisites to be attended to Will a tender be good if clogged with any in the execution of a will under the reand what conditions ?

cent Statute of Wills ? State some of the nuisances affecting dwel. If a person die intestate, leaving a widow,

ling houses and lands for which an action one child, three children of a deceased will lie.

child, and a brother and sister, in what State the instances (if any) in which a car- manner would the intestate's personal

rier is not liable for the loss of goods estate be distributable ? intrusted to him ?

Should the direction to sell an estate be Is a tenant liable to pay the rent of premises absolute or discretionary, in order to

accidentally destroyed by fire, under any constitute an equitable conversion of the and what circumstances ?

freehold into personalty? May the owner of a horse which was stolen from him retake it in any and what place ?

IV. EQUITY AND PRACTICE OF THE COURTS. When is a master answerable for damage Through the intervention of what person

done by his servant, and when not? must an infant sue in a Court of Equity? Questions at the Hilary Term Examination.

233 Can or cannot a bill be filed on behalf of an brance, and in which such notice is infant without his consent?

proved by one witness only, but is posi. If a suit be instituted on behalf of an infant tively and expressly denied by the an

which is considered to be injurious to his swer ; in whose favour will the Court deinterests, in what way will the Court, on

cree? a representation to that effect being made, Are there any circumstances under which proceed in order to ascertain whether it an agreement for a lease for twenty-one be well or ill founded ? and if the former, years, not made in writing, would be in. what course will it adopt?

forced by a Court of Equity ? if so, state If a bill be filed on behalf of a married those circumstances, and on what grounds

woman against her husband without her such an equity would prevail. consent, will this circumstance, on its At what period after a mortgagee has taken being made out to the satisfaction of the possession of the mortgaged estate, and Court, involve any, and if any, what under what circumstances, is the mortconsequences ?

gagor barred of his right to redeem the If a bill be filed by a man and his wife estate ?

touching the personal property of the A testator, by his will, having given a pecuwife, and the husband die pending the niary legacy to A., is induced, when in a suit, does or does not that circumstance state of great mental and bodily weakcause an abatement of the suit?

ness, and through the fraud, influence, Is the objection for want of parties to a bill and circumvention of B., to revoke the

taken in the same manner, where such legacy, and by a codicil to his will to give objection appears on the face of the bill it to B. himself. Is or is not this a case itself, as where it does not so appear? If in which, after the testator's death, and different, then state what are the proper assuming that the facts above stated modes of objection applicable to each of could be clearly established, you would these two cases.

advise A. to have recourse to a Court of Where a cause has proceeded to a hearing, Equity against B. ? If yea, state the reand is then ascertained to be defective

lief that you would seek to obtain for A. for want of parties, does or does not that If no, give the reasons for your not circumstance form a ground for a dis- recommending the suit. missal of the bill, or will the Court adopt any other, and if so, what course in

consequence of such defect ? Is there or is there not any, and if any,

what circumstance appearing on a de- What are the facts necessary to be stated in fendant's answer, which will prevent a the petitioning creditor's affidavit of debt plaintiff from proving a deed viva voce at to strike the docket? the hearing of a cause ?

State the most usual acts of bankruptcy. In a suit for a specific performance of a Within what time must a town fiat be

contract for the sale of an estate, is it prosecuted ? and within what time must competent to either the vendor or the

a country fiat be prosecuted ? purchaser to obtain a reference to the Does a fiat abate at any, and what time, by Master as to the title, or can this be done the death of the party against whom it by one only, and which of such contract- has issued ? ing parties?

Can a creditor, having a security for his Can or cannot an infant maintain a suit for debt by way of mortgage, be a petitioning

the specific performance of a contract ? creditor ?
And give the reason for your opinion, For what purposes may joint creditors of a
whatever it may be.


under a fiat against one of the Where a submission to reference has been firm.

made a rule of a court of common law, Con a creditor, holding a joint and separate has or has not a court of equity jurisdic- security (such as a bond or note), prove tion to afford relief against the award

his debt under both the joint and separate which has been made in pursuance of such estates, or must be elect ? submission ?

If the funds under a fiat are insufficient to In a suit in Equity by an incumbrancer pay the expences, are the creditors, who

against a purchaser for valuable consid. have proved liable to contribute, or must eration, in which such purchaser is sought the assignees bear the loss? to be affected with notice of the incum- What amount of debt proved entitles a






234 Questions at the Hilary Term Examination.- Selections from Correspondence.

creditor to vote in the choice of assignees ? | Under what circumstances are justices reand what amount entitles a creditor to quired to commit a person so charged >

sign the certificate of conformity ? May the Court of Queen's Bench, or a If the certificate be signed by a sufficient Judge in vacation, admit a prisoner to

number of creditors in amount and value, bail in any, and what cases ? have the commissioners a discretionary

power to refuse the certificate ? What is the course to be taken by creditors

SELECTIONS to expunge an improper proof of debt FROM CORRESPONDENCE.

under a fiat Has the landlord any and what priority for PRELIMIMINARY EXAMINATION OF ARTICLBD

rent in cases of bankruptcy ? If, after adjudication, the petitioning credi- To the Editor of the Legal Observer.

tor's debt sbould be found insufficient, can Sir, any and what course be taken to remedy There is no subject upon which the public is the defect?

so weit agreed as the necessity of keeping up What proceeding must be taken by a cre

the respectability of the inembers of the legal ditor to enforce payment of his dividend? attorneys; for this purpose many rules lave

professions, and more especially that of the Under any and what circumstances do goods been inade and taxes imposed without entirely

and chattels of which the bankrupt has producing the desired effect. the possession, but of which he is not the It strikes me that the following rule, if rightly owner, pass to his assignees?

acted upon, would not only speedily decrease the number, but increase the respectability of That branch of the profession-viz. that every person before he is articled should be compelled

to pass an examination in the following or some What is a constructive taking, in larceny? similar branch of education, say, Cæsar's ComIn an indictment, or in a summary proceed- mentaries, Virgil, Xenophon, and the first three

ing for a malicious injury to property, is wooks of Euclid, and a proportionate quantity malice against the owner essential ?

of Algebra : all this any person of ordinary

capacity can attain at the common grammar When is a prisoner said (legally speaking) schools, before he arrives at the age of sixteen. to stand mute ?

A certain attendance at the college in EdinboWhat offence is the advising a prisoner to rough is required to enable a person to become

stand mute, and how is it punishable ? a writer to the signet. The Society of the Who is an accessory before the fact ?

Inner Teinple require an examination some.

thing like this. Who is an accessory after the fact ? Are there any crimes in which there cannot ticularly called to this subject within the last

My attention has been often, but more par. be accessories before the fact? If any, twelve ironths, by several instances of disrepu. give examples.

table conduct on the part of attoruies; and it Are there any crimes in which there cannot is remarkable that none of them would have

be accessories either before or after the been in the profession if the rule above menfact? if any, give examples.

tioned had been made a dozen years ago. If the verdict of a coroner's jury be “ wilful

I trust that some of your numerous readers morder,” and the grand jury, upon a bill

will take the matter up, and get some such

ineasure carried into effect. of indictment for wilful murder being

AN OLD STBSCRIBER. preferred, find a true bill for slaughter” only, how must the prisoner be arraigned and put upon his trial?

Mr. Elitor, What number of peremptory challenges of

I beg to draw your attention to what appears jurors is a prisoner entitled to on his to me to be a crying evil, viz. the practice trial for high treason ? and what number which some London attorneys adopt of employon his trial for murder or felony ?

ing a country agent to serve process in an ac

tion, and then neglecting and refusing to pay Is there any limit to challenges for cause or his fees. I know of three cases in which one reason assigned ?

person has received this treatinent; and I Is an alien indicted for a felony entitled, on should feel extremely obliged if any of your

application to the Court, to have aliens nuinerous correspondents could point out his on the jury by whom he is to be tried ? remedy, as, notivithstanding I have made diliIf

gent search, I cannot find any rule on the subUnder what circumstances are justices of ject, although there certainly should be one

according to the well known maxim “ that there the peace required to admit to bail à per is no wrong without a remedy.” son charged with felony?




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