« EelmineJätka »
Power of Appointment in Purchase Deeds. and Release-the latter between A, B. of
similar to those expressed in the two the first part; C. D. (a purchaser) of the
preceding deeds. ] second part; and E. F. (a trustee nomi- Now, to what purpose is this power of apnated by said C. D.) of the third part: pointment thus introduced from time to time? It is witNESSED, that in consideration, it is never acted upon, at least it is never &c. said A. B. grants, bargains, sells, re- trusted to and relied upon, because, from the leases, &c. to said C. D. (in his actual possibility of its being defective either in its possession, &c.) and his heirs,
inception, or in its subsequent transition (as it ALL, &c.
is said) the legal ownership of the vendor and To hold to said C. D. and his heirs, his trustee is always brought into aid; and To such uses, &c. as he should by thus the benefits to be derived from this mode deed or will appoint; remainder to of conveyance by appointment alone are lost the use of said C. D. and bis assigns sight of and defeated. Those benefits are, for life; remainder to the use of said first, that by the exercise of the power alone, E. F. for the life of said C. D., In the necessity of the concurrence of the trustee trust for said C. D.; and to the in- (which is sometimes difficult to procure) is tent that no wife of said C. D. should obviated ; and secondly, that the necessity and be entitled to dower; remainder to consequent expence of the lease for a year are the use of said C. D., his heirs and avoided. For as to the object of preventing assigns for ever.
the dower of the wife of the vendee from 1st & 2d February, 1820.- IDentures of attaching, that is effected not so certainly by
Lease, Appointment, and Release—the the power of appointment, as hy the severance latter between said C. D. of the first of the freehold from the inheritance by means part; said E. F. of the second part ; G. H. of the subsequent limitations. But if what (a purchaser) of the third part; and J.K. I have stated already were the only evils at. (a trustee nominated by said G. H.) of the tendant on the system, they would not be so fourth part:
great :-deeds of conveyance might be unneRecites the Deeds of 1800.
cessarily lengthened, and needless expence IT IS WITNESSED, that in consideration, might be created, and yet those on whom the &c. said C. D., by virtue of the power preparation of deeds devolves might look on with contained in the recited deed, and of all complacency, since the learned will have it so. other powers, &c. appoints the premises But there is yet a further and greater objection To tbe uses thereinafter declared : to this mode of transfer, and that is that none AND IT IS FURTHER WITNESSED, that in of the deeds thus referring to a previous power consideration, &c. said E. F. (by direc. of appointmeut can ever be regarded as the tion of said C. D.) releases, &c., and said root of a title, because it is a rule in the invesC. D. grants, bargains, sells, releases, &c. tigation of titles, that if any deed in an abto said G. H. (in his possession, &c.) and stract refers to another deed, it involves the his heir,
purchaser with notice of all the contents of All said premises :
the deed referred to, and consequently, and To HOLD
to said G. H. and his very properly, an abstract of that deed is heirs, To such uses, &c. as he should called for;-ibe laiter deed is found to refer by deed or will appoint; remainder back to an antecedent deell in a similar man. to the use of said G. H. and his as- ner, which must also be produced, and 50 signs for life; with subsequent re- backwards ad infinitum so long as the present mainders similar to those contained fashion has existed. It is obvious how very in the deed of 1800.
much abstracts may be lengthened by this pro1st g. 2d January, 1840.-InDentures of cess of entangling one deed with another.
Lease, Appointmont, and Release-the This may be more familiarly illustrated by the latter between said G. H. of the first parts abstract which I have given. The deeds of Ist said J. K. of the second part; L. M. (a) and 20 January 1800 form a very proper root purchaser) of the third part; and N. 0. of the title now, but unhappily they must con(a trustee nominated by said L. M.) of the tinue to be the root for at least forty years to fourth part:
come, and for as many more years as the Kecites the Deeds of 1820.
present mode of conveyance sball henceforth IT IS WITNESSED, that in consideration, be resorted to with regard to these lands; &c. said G. H., by virtue of the power and consequently involve the necessity of an contained in the last recited deed, and of abstract, and production of all the deeds that all other powers, &c. appoints the pre- Inight have been made during those first forty mises to the uses thereinafter declared : years : whereas if the conveyance just made AND IT IS FURTHER witnessed, that in had been a mere simple feorfinent with livery consideration, &c. said J. K. (by direc. of seisiu, made by G. H. alone, without refer. tion of said G. H.) releases, &c., and said ence to any previous deed, it would have been G. H. grants, bargains, sells, releases, a good root of title forty years hence. I say &c. to said L. M. (in his possession, &c.) this with submission, and shall only add ibat if and bis heirs,
any of your learned readers woulil point out ALL said premises :
whether this latter suggestion is open to any To hold to said L. M. and his substantial objection, I should feel obliged. heirs, To such uses, &c. [exactly As the chief objects of the mode of convey
ance on which I have commented, is to bar, on his behalf :ppeared, and contended that A. dower, no doubt the practice will cease when had no lawful cause to complain, inasınuch as the present generation of married women, who he had no interest in or title to the property in were married before the 2d of January 1834, question, the time for redemption allowed by shall have passed away.
the 17th sect. of the act having expired. The I would not have it inferred, either from the section says, all goods which shall be pawnabstract that I have given, or from anything ed,” &c. " shall be deemed forfeited at the exthat I have said, that I offer any decided piration of one whole year” from the time of opinion as to the length of time that is suffi- pawning; and he insisted that the direction in cient to constitute a marketable title. I am the 20th section did not apply to the present aware, on the one hand, that in a late case case, inasmuch as that sectiou only alluded to Cotterell v. Watkins, 1 Beavan 361, it was laid cases where the amount pledged ivas 10s. or down by counsel (Mr. Pemberton) without upwards. disapprobation from the court, that a forty On theo: her side, A.'s solicitorcontended that years' title was now sufficient: and on the the present case must be ruled by the principle other hand, of what is said by Sir Edward established by the Court of Queen's Bench in Sugden on the subject in his new edition Walter v. Smith, 5 B. & Ald. 439, in which (10th) of the Law of Vendors and Purchasers Lord Tenterden, then C. J. Ablott, says, “I am v. 2, p. 135, 139. He concludes by saying of opinion that if the pledge be not redeemned that in practice a convenient rule, no doubt, at the expiration of a year and a day, the will be adopted, and this, taking a middle pawubroker has a right to expose it to sale as course, will perhaps be to furnish a fifty years' soon as he can consistently with the provisions title in ordinary cases, there will be but few of the Act, but at any ime before the sale titles disturbed under a clear title for half a has actually taken place, the owner of the century, where the property has underyone goods has a right to his property. In the prethe usual transfers upon sales and mortgages, sent case it appears that the pawnbroker has and the possession has gone along with the not exercised the power given to bim by law title. A COUNTRY Conveyancer. (accoriling to Lord Tenterden's opinion,) but
on the contrary he was willing at first to re
deliver the pledge on payment of the interest THE STUDENT'S CORNER. he charged, but finding that A. was not to be
duped in that manner, he altogether refused
to deliver the pledge on any terms, and thereCONSTRUCTION OF THE PAWNBROKERS' Act. fore without the slightest doubt it must be
To the Editor of the Legal Observer. considered that B. had the property in his Sir,
possession at the time when 4. applied to reA case of great importance on the Con. deem it and tendered the principal lent, and struction of the Pawnbrokers' Act, 39 & 40 lawful interest. G. 3, c. 99, bas recently engrossed my atten- B.'s solicitor, in reply, answered that the tion, and I communicate the particulars to you, judgment of C. J. Abbott did not apply to the in order to solicit your or your correspondents' present case, inasmuch as the C. J. grounds his opinion on the subject.
opinion on the 20th section. “It is manifest," A. pledged an article with B., a pawnbroker, he says,” from the other provisions of the act," for a sum less than 108. (viz : 48.) on the 15th alluding to the 20th sec., which only applies November, 1838 ; and on 17th November last where “ the amount is 108. or upwards." year, he applied to redeem it, and tendered the Here the ainount is 48., and therefore can have principal and lawful interest, (which accord. no application. The case must be decided by ing to a case of Rex v. Goodburn, A. & E. (also the 17th section, the words of which being reported in L. O.) is 104d., that case deciding too clear for doubt, be submitted that the that a pawnbroker is not justified in charging complaint must be dismissed with costs. more than 20 per cent. where the sum is an The magistrates agreed with B.'s aitorney intermediate sum, as inentioned in the act, in his construction of the act, and thought (not to be calculated by the month, but by the that the case must be decided by the 17th year ;) but B. refused to delirer the pledge section, which declares all goods forfeited at unless ls. Id. was paid as interest, (which the expiration of one year; and they were of pawnbrokers are in the habit of charging), and opinion that the opinion of Lord Tenterden opon A. threatening an application to the ma- and the other Judges in Walter v. Smith was gistrates for the restoration of the property, founded on the 20th section,
which only B. coplended that the property was his own, applied to 10s. or upwards; anil, acting under and absolutely refused to deliver the pledge to this view, they dismissell the complaint. 4., even if the interest he demanded was piid, After a mature consideration of the words on the ground that twelve inonths had elapsed of the act, and the judgment delivered by four from the time of pledging: It should be of the most learned Judges that ever adorned observed, that at first, B. offered to re-deliver the Bench, I consider the above point very the pledge on payınent of the interest he de- doubtful, and should feel particularly indebted manded, which is considerably inore than the to you, or your correspondents, for their assist.. law allows.
In return, I may be commanded when-. On B.'s refusal to restore the property, A. ever any of your correspondents i equire assistobtained a summons against B. A solicitor ance.
262 Admission of Attorneys.- Result of the Hilary Term Examination.- Chancery Reform. NEW RULE FOR THE ADMISSION months which will elapse before the Easter
OF ATTORNEYS IN THE EXCHE-Term Examination, which cannot take place QUER.
till the 4th May, (the term ending on the
13th) will enable the diligent student to Hilary Term, 3 Vict.
make up for much lost time. He will reIr ie ordered, that every person who shall collect that in Common Law and Equity he intend to apply for admission as an attorney must shew a considerable degree of profiof this Court, and who shall not have been ciency, and the next department in imporadmitted an attorney and solicitor of any tance is that of Conveyancing, though he other Court, shall, (in addition to the notices has the choice also of Bankruptcy and to be given to the examiners, masters, &c. Criminal Law. as required by a Rule of Hilary Term, 6 William IV, 1836, read in all the Courts) for the space of one full term previous to the term in which he shall apply to be ad
CHANCERY REFORM. mitted, cause his name and place or places of abode for the last preceding twelve
The following is a copy of the statements months, and also the name or names and contained in a petition to the House of Complace or places of abode of the attorney or mons from the Attorneys and Solicitors prace attorneys to whom he shall have been tising in the city of Exeter and neighbour. articled, written in legible characters, to be affixed in the Exchequer Office of Pleas, in such place as public notices are usually the country at large, are suffering to an enor
That ihe petitioners and their clients, and affixed, and also enter or cause to be entered in two books to be kept for the ness in the Court of Chancery, so that when a
mous extent by the very great arrear of busi. purpose, one at the chambers of the Lord cause is ripe for bearing, a delay of about two Chief Baron, and the other at the chambers years must accrue before either of the present of the other Barons of this Court, his Judges will have an opportunity to try it, to name and place or places of abode for the the great hindrance (amounting almost io a delast preceding twelve months, and also the nial) of justice. name or names and place or places of abode
The petitioners have viewed with much dis. of the attorney or attornies to whom he shall connected with the Court of Chancery, on the
appointment the discussions of learned men have been articled.
remedies for this great evil, in which the want (Signed) ABINGER,
of concord appears to render any relief hope. J. Parke.
less. E. H. ALDERSON.
The petitioners beg to suggest that there are J. GURNEY.
three men of profound legal ability, and posR. M. Rolfe.
sessing full vigour of intellect, at present re
ceiving from the country large sums as pen. Read in Court, Jan.
sions, for having filled, each for a short time, 29, 1840.
the office of Lord Chancellor,-two of them in Stephen RICHARDS,
England and one in Ireland.
The petitioners beg to suggest that until some plan can be defined for peripanently ad.
minisiering justice in the Court of Chancery RESULT OF THE HILARY TERM more satisfactorily than at present, that thesa EXAMINATION.
three learned men might be requested to pre
side over Courts for the purpose of discharge We are informed that 119 candidates at. ing the large amount of arrears with which the tended at the last examination, and that 4 present Judges are encumbered. only were unsuccessful. As usual, a con- such three Judges might sit separately, and
The petitioners beg further to suggest that siderable number were unprepared with hear such causes and motions as are now heard their testimonials, and consequently could by the Vice Chancellor and the Master of the not be examined. We understand that the Rolls, and might also at stated times sit toge. examination was deemed the best that has ther and hear appeals such as are now heard hitherto taken place. The comparative se- by the Lord Chancellor; and that as there are verity which was exercised in Michaelmas already two sets of Courts, no inconvenience Term appears to have produced a good ef-would be experienced by the operation of this fect. It is now four years since the rules fit would be conferred on the country in the
temporary remedy; but an inestimable benewere made, and we recommend those who administration of this important branch of its are preparing for the examination to make judicature, good use of their time. Even the three
Selections from Correspondence. - Superior Courts : Lord Chancellor's Court. 263
the gifts, with a prohibition against anticiFROM CORRESPONDENCE.
pation, but without words of gin over on
anticipation. The legutee took a vested ON JUDGE'S ORDERS TO STAY PROCEEDINGS. interest in some of the gifts while she was To the Editor of the Legrul Observer.
single, and all of them took effect in posSir,
session after her marriage. Held, that the Knowing the interest you take in all mat
legatee's separate estate in the bequests, 115 lers relating to the profession, I venture to
well without us with the clause against antrvuble you with a few remarks on this sub.
ticipation, took effect on her subsequent ject. And I may first observe, that it is the marriage, and curlixued during that coverconstant practice ainong attorneys, where a
lure ; that she might at any time dispose client has no defence to au action, and unable
of the gifts to her separate use, independent at the time to pay, to give a judge's order to
of her husband, and of those ecith the clause stay upon payment of the debt and costs on a against anticipation after his death only, certain day therein mentioned, or in default,
that while discovert her separate eslate was that the plaintiff shall be at liberty to sign
suspensled, but would again become effecfinal judgment, and issue execution for the
tuul with the like restrictions on her neat ainount. That such a practice is very couve
murriage, if not alienuted during her disnient no one can deny, it saving the expense of
cuverture. a cognovit, and if the delit be above 261., the
Seinble that Newton o. Reid, 4 Sim. 141, stamp. But Sir, convenient as this practice
wu o. Pocock, 5 Sim. 663, and the is, I was considerably alarıned the other day,
dictuin in Massey o. Parker, 2 Myl. & K. upon hearing that a motion had been made a
274, and other cases of that class, are overshort tiine since to the Court of Excbequer to
ruled. set aside one of these said orders, wben the Two cases, Scarborough v. Borman, and judges one and all declared that the same was Tullett v. Armstrong, were brought before the illegal, and were surprised that such an order | Lord Chancellor in January 1839, upun appeal was made, in fact, would hardly believe it, and from the Master of the Rolls. The latter case their lordships accordingly set the order aside, was reported in 17 Leg. Obs. p. 26, and both and said, the plaintif inight sign judgment the were subsequently reported in 1 Bearan, pp. 1 next day, it being no stay of proceedings, and and 34. The case of Scarborough v. Bormar consequently oui of the power of a judge to was this :
A testator bequeathed a sum of make it
money on trust to vest the same in securities, Yet these orders are continually heing made, and pay the iuterest to his daughter, then a and should they be set aside, would perhaps be widow, during her life, for her sole, separate, the ruin of those who gave them.
and exclusive benefit, without being subject to Perhaps some of your numerous correspon the debts or control of any future husband. dents may be able to inforın me of the name The legalee married again after the testator's of this case, for should it be correct, I shall death, without any settlement of the fund su hesitate in future to consent to another order. bequeathed; and lier husband filed a bill against
J. A. her and the trustees, praying to be entitled in NON-PAYMENT OF COUNTRY AGENTS. right of his wife to the inierest of the said suin Sir,
given by her father's will. The defendants Under the above title, a letter appears in put in a demurrer to the bill, and the Muster the nuinber of last week of your Journal, of the Rolls allowed the same, conceiving that p. 331, sad signed by “ A Constant Reader.” the point raised was within his judgment in
The reinedy of the agent is clear, and it Tallett v. Armstrong. The facts of that case would be by action against the attorney by were these: A test.tor gave and devised to whom he was employed. I think the follow. trustees all his freehold, copyhold, and leaseing authorities will remove the difficuldy of bold estates, and all his personal estate, in your correspondent. Scrace v. Whittington, trust for his wife for life, and after her death 2 B. & Cres, 11; 3 D. & R. 195, S. C. he devised the freehold estate to his daughter,
W. B. D. her heirs and assigns, and a copyhold estate to
her and his two grand-daughters, equally be
tween them, during their joint and several SUPERIOR COURTS.
lives, as tenants in cominon, and in such inan
ner that none of them should anticipate &c. Lord Chancellor's Court.
these respective life estates, and that no hus
band or husbands of any of them should have RESTRAINT ON ALIENATION.—JURISDICTION any right or control over their interests reEXTENDED.*
spectively, nor should the same be subject to Gifts by will, in trust (ufter a life interest) band; and the testator gave, after the death
the debts or engagements of any such husfor un unmarried womun, during her life, for her separate use, independent of any of his wife, to M. A. 7., one of the grandhusband she may marry, und as to some of
a There is also a report of Tullett v. ArmThis important case occupies 80 great a strong, on motion for a receiver, in 12 Leg. part of the present nuinber, that we have no Obs. p. 404-5; and I keen, 428. room for any observatious as to it. We shall b | Beavan 17, and 17 Leg. Obs. 26. give them in our uext number.
HUSBAND AND WIFE.-SEPARATE ESTATE.
Superior. Courls : Lord Chancellor's Court. daughters, certain other copybold and also | up his claim against the gift under the second leasebold premises, to hold to ber and her will, to the separate use of Mrs. Armstrong, assigns during her life ; and he declared that that having vested in interest as well as possesthe said devises and bequests to his grand-sion during her coverture. Mr. Wray in andaughters were intended by him to be to them swer to these arguments, confined bis own to free from the debts and control of any husband, the maintenance of the validity of the clause and were to be taken, received, and enjoyed against anticipation, and on that point he by them respectively, as if they were sole and prayed in aid the arguments not only for the unmarried. After the death of the testator, respondents in Scarborough v. Borman, but his daughter made her will, and devised the also those for the plaintiff there, which adfreehold estate given to her by her father's mitted that if the prohibition against anticipawill, after the death of her mother, who was tion had accoinpanied the gift to Mrs. Scarthen living, to trustees, to pay the rents to the borough, ber husband could not be entitled to said M. A. T. her niece, during her life, in the inierest of the sum left to her. A vast such manner as that she should not sell or nuinber of cases were cited. otherwise anticipate her lile interest therein, The Lord Chancellor at the close of the ar. and that the same should not be subject to the guments.—The decisions on this subject candebts or control of any husband she inight not be reconciled ; they cannot remain as they marry, lier own receipts to be sufficient dis- are. If separate estate is to be supported at charges to the trustees for the rents, &c. Thus, all, it must be supported on both branches. this last gift, and the first gift to M. A. T. To take away the restraint on alienation, and under the grandfather's will were guarded by leave the estate to the separate use only, would words in restraint of alienation, but there was be leaving the woman in as bad a state as if no gift over on her attempting to anticipate or she had no limitation to her separate use. I alienate them. The second gift under the do not see how the Vice Chancellor's view can first will was not accompanied with the re- be supported. I should feel anxious to hold straint on alienation ; all the gifts were to be the law as the Muster of the Rolls has put it. free from the debts and control of any husband, This case is extremely beneficial to all parties ; and all were to go over on her death. M. A. but how that is to be effected consistently with T. married William Armstrong after the tes the authorities, is the difficulty I feel. We tator's death, and in the lifetime of the testatrix, know nothing of separate use except as antici. and of the widow; and on the death of the sur- pating future coverture. vivor of them in 1830, all the gifts to her The Lord Chancellor.—The question in this under both wills took effect in possession; and case is as to the clause againt anticipation, but in 1832 she and her said husband byindentures I agree with the Master of the Rolls in thinkgranted an annuity to the plaintiff in considera-ing it not only embraces the question of sepa. tion of 300l. paid by him to the husband, and rate estate, which has been the subject of Mrs. Armstrong appointed the said freehold, much discussion, but that these two quescopyhold, and leasehold premises to the plain- tions are identical as to the principles which titi for securing the annuity &c. Mr. 'Arm- must regulate the decisions upon them; by strong took the benefit of thie act for relief of wbich I mean, if the case be of a separate insolvent debtors in 1835, and the annuity estate, without power of anticipation, it must being in arrear, the plaintiff filed bis bill to exist with that qualification, if it exist at all; obtain payment out of the property so be. and there is no principle upon which it can be queathed to Mrs. Armstrong, and appointed held, that the separate estate operates during by her to secure payment of the annuity. The a coverture subsequent to the gift; but the proMaster of the Rolls, before whom the cause vision against anticipation with which the gift came to be heard, held, by his juilgment be. Wiis qualified, does not. It is obvious that such fore referred 10, that the plaintiff
' acquired no'a rule would in practice defeat the intention right, under his securities, to the gifts limited of the donor, and in many cases render the boy the wills to the separate use of Mrs. Arm- provision which he has made for the protection strong without power of alienation ; but as to of the object of bis bounty, the means and the gift by the first will for her separate use, instrument of depriving her of it. When once without any words probibiting alienation, the it was established that a married woman might plaintiff was entitled to the relief he prayed have and enjoy separate estate, and dispose of by virtue of her appointment.
it as a feme sole, it was found that to secure to The appeal from ibat judgment, though de- her the desired protection against the marital livered in Tullett v. Armstrong, was also appli- right, it was necessary to quality and fetter the cable to Scarborough v. Borman, was argued gift of the separate estate by, prohibiting on the 21st, 220, 230 and 24th of January 1839, anticipation. The power to do this, was by Mr. Wigram and Mr. Jemmett for the ap- established by authority not now to be ques. pellant in the latter case, and by Mr. Tinney tionedl; but' which could only have been and Mr. Sidehottom for the re:pondents; by founded upon the power of this Court to Sir William Hurne, Mr. Teed, and Mr. S. model and qualify an interest in property Clarke for the appellant Tulleti; by Mr. Wray which it had itsell created, without regard to for Mr. and Mrs. Armstrong, and by other those rules which the law has established for counsel for trustees and other parties to the regulating the enjoyment of property in other
It was understood in the course of cases. If therefore any rule were now to be die arguments, that Mr. Tuulleti's counsel gave adopted, by which the separate estale could in