260 Power of Appointment in Purchase Deeds. and Release-the latter between A. B. of ALL, &c. TO HOLD to said C. D. and his heirs, To such uses, &c. as he should by deed or will appoint; remainder to the use of said C. D. and his assigns for life; remainder to the use of said E. F. for the life of said C. D., In trust for said C. D.; and to the intent that no wife of said C. D. should be entitled to dower; remainder to the use of said C. D., his heirs and assigns for ever. 1st & 2d February, 1820.-INDENTURES of Lease, Appointment, and Release-the latter between said C. D. of the first part; said E. F. of the second part; G. H. (a purchaser) of the third part; and J. K. (a trustee nominated by said G. H.) of the fourth part: similar to those expressed in the two preceding deeds.] Now, to what purpose is this power of appointment thus introduced from time to time? It is never acted upon, at least it is never trusted to and relied upon, because, from the possibility of its being defective either in its inception, or in its subsequent transition (as it is said) the legal ownership of the vendor and his trustee is always brought into aid; and thus the benefits to be derived from this mode of conveyance by appointment alone are lost sight of and defeated. Those benefits are, first, that by the exercise of the power alone, the necessity of the concurrence of the trustee (which is sometimes difficult to procure) is obviated; and secondly, that the necessity and consequent expence of the lease for a year are avoided. For as to the object of preventing the dower of the wife of the vendee trom attaching, that is effected not so certainly by the power of appointment, as by the severance of the freehold from the inheritance by means of the subsequent limitations. But if what I have stated already were the only evils attendant on the system, they would not be so great-deeds of conveyance might be unnecessarily lengthened, and needless expence might be created, and yet those on whom the preparation of deeds devolves might look on with complacency, since the learned will have it so. Recites the Deeds of 1800. IT IS WITNESSED, that in consideration, &c. said C. D., by virtue of the power contained in the recited deed, and of all other powers, &c. appoints the premises But there is yet a further and greater objection To the 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 his heirs, ALL said premises : TO HOLD to said G. H. and his heirs, To such uses, &c. as he should by deed or will appoint; remainder to the use of said G. H. and his assigns for life; with subsequent remainders similar to those contained in the deed of 1800. 1st & 2d January, 1840.-INDENTURES of Lease, Appointment, and Release-the latter between said G. H. of the first part; said J. K. of the second part; L. M. (a purchaser) of the third part; and N. O. (a trustee nominated by said L. M.) of the fourth part: Recites the Deeds of 1820. IT IS WITNESSED, that in consideration, &c. said G. H., by virtue of the power contained in the last recited deed, and of all other powers, &c. appoints the premises to the uses thereinafter declared: AND IT IS FURTHER WITNESSED, that in consideration, &c. said J. K. (by direction of said G. H.) releases, &c., and said G. H. grants, bargains, sells, releases, &c. to said L. M. (in his possessiou, &c.) and his heirs, ALL said premises: TO HOLD to said L. M. and his stract refers to another deed, it involves the purchaser with notice of all the contents of the deed referred to, and consequently, and very properly, an abstract of that deed is called for;-the latter deed is found to refer back to an antecedent deed in a similar manner, which must also be produced, and so backwards ad infinitum so long as the present fashion has existed. It is obvious how very much abstracts may be lengthened by this process of entangling one deed with another. This may be more familiarly illustrated by the abstract which I have given. The deeds of 1st and 2d January 1800 form a very proper root of the title now, but unhappily they must continue to be the root for at least forty years to come, and for as many more years as the present mode of conveyance shall henceforth be resorted to with regard to these lands; and consequently involve the necessity of an abstract, and production of all the deeds that might have been made during those first forty years whereas if the conveyance just made had been a mere simple feoffment with livery of seisiu, made by G. H. alone, without reference to any previous deed, it would have been a good root of title forty years hence. I say this with submission, and shall only add that if any of your learned readers would point out whether this latter suggestion is open to any substantial objection, I should feel obliged. As the chief objects of the mode of convey The Student's Corner. ance on which I have commented, is to bar dower, no doubt the practice will cease when the present generation of married women, who were married before the 2d of January 1834, shall have passed away. 261 on his behalf appeared, and contended that A. had no lawful cause to complain, inasmuch as he had no interest in or title to the property in question, the time for redemption allowed by 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 section only alluded to Cotterell v. Watkins, 1 Beavan 361, it was laid cases where the amount pledged was 10s. or down by counsel (Mr. Pemberton) without upwards. disapprobation from the court, that a forty years' title was now sufficient: and on the other hand, of what is said by Sir Edward Sugden on the subject in his new edition (10th) of the Law of Vendors and Purchasers v. 2, p. 135, 139. He concludes by saying that in practice a convenient rule, no doubt, will be adopted, and this, taking a middle course, will perhaps be to furnish a fifty years' title in ordinary cases; there will be but few titles disturbed under a clear title for half a century, where the property has undergone the usual transfers upon sales and mortgages, and the possession has gone along with the title. A COUNTRY CONVEYANCER. On the other side, A.'s solicitor contended that the present case must be ruled by the principle established by the Court of Queen's Bench in Walter v. Smith, 5 B. & Ald. 439, in which Lord Tenterden, then C. J. Abbott, says, "I am of opinion that if the pledge be not redeemed at the expiration of a year and a day, the pawnbroker has a right to expose it to sale as soon as he can consistently with the provisions of the Act, but at any time before the sale has actually taken place, the owner of the goods has a right to his property. In the present case it appears that the pawnbroker has not exercised the power given to him by law (according to Lord Tenterden's opinion,) but on the contrary he was willing at first to redeliver the pledge on payment of the interest 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 therefore without the slightest doubt it must be considered that B. had the property in his possession at the time when A. 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, has recently engrossed my attention, and I communicate the particulars to you, in order to solicit your or your correspondents' opinion on the subject. THE STUDENT'S CORNER. CONSTRUCTION OF THE PAWNBROKERS' ACT. Sir, 4. pledged an article with B., a pawnbroker, for a sum less than 10s. (viz: 4s.) on the 15th November, 1838; and on 17th November last year, he applied to redeem it, and tendered the principal and lawful interest, (which accord. ing to a case of Rex v. Goodburn, A. & E. (also reported in L. O.) is 104d., that case deciding that a pawnbroker is not justified in charging more than 20 per cent. where the sum is an intermediate sum, as inentioned in the act, (not to be calculated by the month, but by the year;) but B. refused to deliver the pledge un'ess ls. Id. was paid as interest, (which pawnbrokers are in the habit of charging), and upon A. threatening an application to the magistrates for the restoration of the property, B. contended that the property was his own, and absolutely refused to deliver the pledge to 4., even if the interest he demanded was paid, on the ground that twelve months had elapsed from the time of pledging. It should be observed, that at first, B. offered to re-deliver the pledge on payment of the interest he demanded, which is considerably more than the law allows. On B.'s refusal to restore the property, A. obtained a summons against B. A solicitor B.'s solicitor, in reply, answered that the judgment of C. J. Abbott did not apply to the present case, inasmuch as the C. J. grounds his opinion on the 20th section. "It is manifest," he says," from the other provisions of the act," alluding to the 20th sec., which only applies where the amount is 10s. or upwards." Here the amount is 4s., and therefore can have no application. The case must be decided by the 17th section, the words of which being too clear for doubt, he submitted that the complaint must be dismissed with costs. The magistrates agreed with B.'s attorney in his construction of the act, and thought that the case must be decided by the 17th section, which declares all goods forfeited at the expiration of one year; and they were of opinion that the opinion of Lord Tenterden and the other Judges in Walter v. Smith was founded on the 20th section, which only applied to 10s. or upwards; and, acting under this view, they dismissed the complaint. After a mature consideration of the words' of the act, and the judgment delivered by four of the most learned Judges that ever adorned the Bench, I consider the above point very doubtful, and should feel particularly indebted to you, or your correspondents, for their assist. ance. In return, I may be commanded when-. 1 ever any of your correspondents require assistance. W. J. 262 Admission of Attorneys.- Result of the Hilary Term Examination.— Chancery Reform. Hilary Term, 3 Vict. 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 make up for much lost time. He will recollect that in Common Law and Equity he must shew a considerable degree of proficiency, and the next department in importance is that of Conveyancing, though he has the choice also of Bankruptcy and Criminal Law. Ir is ordered, that every person who shall affixed, and also enter or cause to be Read in Court, Jan. 29, 1840. STEPHEN RIchards, Master. ABINGER, J. PARKE. E. H. ALDERSON. RESULT OF THE HILARY TERM CHANCERY REFORM. THE following is a copy of the statements contained in a petition to the House of Commons from the Attorneys and Solicitors practising in the city of Exeter and neighbour. hood the country at large, are suffering to an enorThat the petitioners and their clients, and mous extent by the very great arrear of business in the Court of Chancery, so that when a cause is ripe for hearing, a delay of about two years must accrue before either of the present Judges will have an opportunity to try it, to the great hindrance (amounting almost to a denial) of justice. The petitioners have viewed with much disappointment the discussions of learned men connected with the Court of Chancery, on the remedies for this great evil, in which the want of concord appears to render any relief hopeless. The petitioners beg to suggest that there are three men of profound legal ability, and possessing full vigour of intellect, at present receiving from the country large sums as pensions, for having filled, each for a short time, the office of Lord Chancellor,-two of them in England and one in Ireland. present Judges are encumbered. The petitioners beg to suggest that until some plan can be defined for permanently administering justice in the Court of Chancery more satisfactorily than at present, that these three learned men might be requested to preside over Courts for the purpose of dischargWe are informed that 119 candidates at-ing the large amount of arrears with which the tended at the last examination, and that 4 only were unsuccessful. As usual, a considerable number were unprepared with their testimonials, and consequently could not be examined. We understand that the examination was deemed the best that has hitherto taken place. The comparative severity which was exercised in Michaelmas Term appears to have produced a good effect. It is now four years since the rules were made, and we recommend those who are preparing for the examination to make good use of their time. Even the three such three Judges might sit separately, and The petitioners beg further to suggest that hear such causes and motions as are now heard by the Vice Chancellor and the Master of the Rolls, and might also at stated times sit toge ther and hear appeals such as are now heard by the Lord Chancellor; and that as there are already two sets of Courts, no inconvenience would be experienced by the operation of this fit would be conferred on the country in the temporary remedy; but an inestimable beneadministration of this important branch of its judicature, Selections from Correspondence. -Superior Courts: Lord Chancellor's Court. SELECTIONS FROM CORRESPONDENCE. ON JUDGE'S ORDERS TO STAY PROCEEDINGS. To the Editor of the Legal Observer. Sir, KNOWING the interest you take in all matCers relating to the profession, I venture to trouble you with a few remarks on this subject. And I may first observe, that it is the constant practice among attorneys, where a client has no defence to an action, and unable at the time to pay, to give a judge's order to stay upon payment of the debt and costs on a certain day therein mentioned, or in default, that the plaintiff shall be at liberty to sign final judgment, and issue execution for the amount. That such a practice is very couvenient no one can deny, it saving the expense of a cognovit, and if the debt be above 267., the stamp. But Sir, convenient as this practice is, I was considerably alarmed the other day, upon hearing that a motion had been made a short time since to the Court of Exchequer to set aside one of these said orders, when the judges one and all declared that the same was illegal, and were surprised that such an order was made, in fact, would hardly believe it, and their lordships accordingly set the order aside, and said, the plaintiff might sign judgment the next day, it being no stay of proceedings, and consequently out of the power of a judge to make it. Yet these orders are continually being made, and should they be set aside, would perhaps be the ruin of those who gave them. the gifts, with a prohibition against anticipation, but without words of gift over on anticipation. The legutee took a vested interest in some of the gifts while she was single, and all of them took effect in possession after her marriage. Held, that the legatee's separate estate in the bequests, as well without as with the clause against anticipation, took effect on her subsequent marriage, and continued during that coverture; that she might at any time dispose of the gifts to her separate use, independent of her husband, and of those with the clause against anticipation after his death only, that while discovert her separate estate was suspended, but would again become effectual with the like restrictions on her next marriage, if not alienated during her dis cuverture. Semble that Newton v. Reid, 4 Sim. 141, Brown v. Pocock, 5 Sim. 663, and the dictum in Massey . Parker, 2 Myl. & K. 274, and other cases of that class, are overruled. Two cases, Scarborough v. Borman, and Tullett v. Armstrong, were brought before the Lord Chancellor in January 1839, upon appeal from the Muster of the Rolls. The latter case was reported in 17 Leg. Obs. p. 26, and both were subsequently reported in 1 Beavan, pp. 1 and 34. The case of Scarborough v. Borman was this: A testator bequeathed a sum of money on trust to vest the same in securities, and pay the interest to his daughter, then a widow, during her life, for her sole, separate, and exclusive benefit, without being subject to the debts or control of any future husband. The legatee married again after the testator's death, without any settlement of the fund so bequeathed; and her husband filed a bill against her and the trustees, praying to be entitled in right of his wife to the interest of the said sumn 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 Master the number of last week of your Journal, of the Rolls allowed the same, conceiving that p. 334, and signed by " A Constant Reader." the point raised was within his judgment in The remedy of the agent is clear, and it Tullett v. Armstrong. The facts of that case would be by action against the attorney by were these: A testator gave and devised to whom he was employed. I think the follow-trustees all his freehold, copyhold, and leaseing authorities will remove the difficulty of your correspondent. Scrace v. Whittington, 2 B. & Cres. 11; 3 D. & R. 195, S. C. Perhaps some of your numerous correspondents may be able to inform me of the name of this case, for should it be correct, I shall hesitate in future to consent to another order. J. A. NON-PAYMENT OF COUNTRY AGENTS. hold estates, and all his personal estate, in trust for his wife for life, and after her death he devised the freehold estate to his daughter, her heirs and assigns, and a copyhold estate to her and his two grand-daughters, equally between them, during their joint and several lives, as tenants in common, and in such manner that none of them should anticipate &c. these respective life estates, and that no husband or husbands of any of them should have any right or control over their interests respectively, nor should the same be subject to the debts or engagements of any such husof his wife, to M. A. T., one of the grandband; and the testator gave, after the death a There is also a report of Tullett v. Armstrong, on motion for a receiver, in 12 Leg. Obs. p. 404-5; and 1 Keen, 428. bBeavan 17, and 17 Leg. Obs. 26. 264 Superior Courts: Lord Chancellor's Court. that having vested in interest as well as possession during her coverture. Mr. Wray in answer to these arguments, confined his own to the maintenance of the validity of the clause against anticipation, and on that point he prayed in aid the arguments not only for the respondents in Scarborough v. Borman, but also those for the plaintiff there, which admitted that if the prohibition against anticipation had accompanied the gift to Mrs. Scarborough, her husband could not be entitled to the interest of the sum left to her. A vast number of cases were cited. daughters, certain other copyhold and also | up his claim against the gift under the second leasehold premises, to hold to her and her will, to the separate use of Mrs. Armstrong, assigns during her life; and he declared that the said devises and bequests to his granddaughters were intended by him to be to them free from the debts and control of any husband, and were to be taken, received, and enjoyed by them respectively, as if they were sole and unmarried. After the death of the testator, his daughter made her will, and devised the freehold estate given to her by her father's will, after the death of her mother, who was then living, to trustees, to pay the rents to the said M. A. T. her niece, during her life, in such manner as that she should not sell or otherwise anticipate her life interest therein, The Lord Chancellor at the close of the arand that the same should not be subject to the guments.-The decisions on this subject candebts or control of any husband she might not be reconciled; they cannot remain as they marry, her 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 Master 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 by indentures 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 3001. paid by him to the husband, and rate estate, which has been the subject of Mrs. Armstrong appointed the said freehold, copyhold, and leasehold premises to the plaintiff for securing the annuity &c. Mr. Armstrong took the benefit of the act for relief of insolvent debtors in 1835, and the annuity being in arrear, the plaintiff filed his bill to obtain payment out of the property so bequeathed to Mrs. Armstrong, and appointed by her to secure payment of the annuity. The Master of the Rolls, before whom the cause came to be heard, held, by his judgment before referred to, that the plaintiff acquired no right, under his securities, to the gifts limited by the wills to the separate use of Mrs. Armstrong without power of alienation; but as to the gift by the first will for her separate use, without any words prohibiting alienation, the plaintiff was entitled to the relief he prayed by virtue of her appointment. much discussion, but that these two questions are identical as to the principles which must regulate the decisions upon them; by which I mean, if the case be of a separate estate, without power of anticipation, it must exist with that qualification, if it exist at all; and there is no principle upon which it can be held, that the separate estate operates during a coverture subsequent to the gift; but the provision against anticipation with which the gift was qualified, does not. It is obvious that such a rule would in practice defeat the intention of the donor, and in many cases render the provision which he has made for the protection of the object of his bounty, the means and instrument of depriving her of it. When once it was established that a married woman might have and enjoy separate estate, and dispose of it as a feme sole, it was found that to secure to The appeal from that judginent, though de- her the desired protection against the marital livered in Tullett v. Armstrong, was also appli-right, it was necessary to qualify and fetter the cable to Scarborough v. Borman, was argued gift of the separate estate by prohibiting on the 21st, 224, 23d 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 quespellant in the latter case, and by Mr. Tinney tioned; but which could only have been and Mr. Sidebottom for the respondents; by founded upon the power of this Court to Sir William Horne, Mr. Teed, and Mr. S. model and qualify an interest in property Clarke for the appellant Tullett; by Mr. Wray which it had itself 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 Causes. It was understood in the course of cases. If therefore any rule were now to be the arguments, that Mr. Tullett's counsel gave adopted, by which the separate estate could in |
