Power of Appointment in Purchase Deeds. 295 pointment. If its utility were in fact as circum- | either case, the inference is the same; in neither scribed as it appears to him, unquestionably, case is notice of the mode of acquisition inmuch reason exists for its abrogation; but volved, much less of the contents of the parwhere did he learn its only purpose was to ticular deed under which he took the estate. bar the wife's dower? I can understand that No doubt the recital of a deed, is notice of its such is the object of the uses; but I never contents, but as an appointment no more combefore heard, the exercise of the power was pels a recital than a feoffment, there can be no governed by any such end. Surely, so bold an advantage in the adoption of the latter. innovator should have reflected, before penning Possibly your correspondent has been struck an undeserved insinuation against the integrity with Mr. Burton's precedent for a conveyance or knowledge of his fraternity. in fee, “I give this land to you and to your heirs," and admires the conciseness, although that virtue may be obtained only by a sacrifice of recitals, covenants, and other trifling incidents to a modern assurance. That recitals may be superfluous, in the curious deduction of title contained in your correspondent's letter, may be admitted. I say curious, be cause I do not believe that one title in a thousand consists of so smooth and harmonious a string of transfers, so singularly free from all devises, descents, and settlements, despite the liability of an estate, in the course of fifty years, to some of those antidotes to simplicity. But assuming that change of description in the property renders a recital to preserve identity indispensable, that subinterests call for some mode of explanation, and that the ordinary dealings of man preclude the hope of a general banishment of recitals, is there no efficacy in a contract, to control the purchaser's right of calling for deeds? Where is the solicitor or conveyancer who cannot make a root of title for a vendor, notwithstanding the deeds for the last century are all entangled? I am sure your correspondent will not respond The case of Doe v. Jones, 10 B. & C. 457, followed by Skeeles v. Shearly, 6 Law J., (n. s.) ch. 21, before the V. C., and 7 L. J., (n. s.) ch. 3, before the L. C., established that the exercise of the power in favour of a purchaser, gave him priority over the judgment creditors of the vendor, although the purchaser had notice of the judgments; as a consequence, the search for judgments became unnecessary, a saving of expense, ample as a compensation for a few extra folios, to say nothing of the freedom from all risk of oversight. So, where the owner was desirous of mortgaging, (a transaction done always in the expectation of being undone), the expensive search was again avoided. The convenience resulting from the power in family arrangements must be allowed to have some weight in the minds of those, who do not look to the vesting an estate in a client as the sole end in view, but allow themselves to be further influenced by a consideration of how it is to be got out of him, and the innumerable modifications it will probably be subjected to, while in his hands. I forbear troubling you with a detail of the virtues of the power, as I am sure, to a majority of your in person. readers, it would be unnecessary and tedious; in candour, I must not omit to state, that the cases of Doe v. Jones, and Skeeles v. Shearly, are, as respects the immediate purpose for which I cited them, interfered with by the recent act 1 & 2 Vict. c. 110; but your correspondent's reflections arose, "in the course of his practice in conveyancing," which I must suppose extended to a period more remote than the latter end of 1838, when the above act came into operation. The addition of the release is one of those acts of caution, I hope to see always influence the profession; for although not an inveterate adherent to old form and precedent, I should be the last to encourage the temerity requisite to stake a client's money upon so delicate an assurance as a bare appointment. A further and greater objection urged by your correspondent, is the utter impossibility of a conveyance containing an appointment, ever being made a root of title. He might have stated his reasons for coming to such a conclusion, instead of leaving us to imagine what particular misapprehension he was labouring under. Why an appointment is more inempable than a feoffment, I cannot conceive. may be true, the exercise of a power supposes its existence, but not more so than the conveyance of an estate by a man, (I care not by what assurance), leads to the conclusion he acquired it by some legitimate means: in Your correspondent's panacea for imaginative evils in the feoffment-as a conveyance of land held under a title as set forth by him, has the merit of consistent simplicity and rarity, and in its innocence from all useful application to the more complicated affairs of modern times, may be regarded as interesting by the lover of feudal formality. Nobody will quarrel with its use-a title would not be ob jectionable because a feoffinent appeared in the abstract. But its strongest admirer cannot be blind to its inapplicability to one case in a hundred-nor to its numerous inconveniences where applicable. Should the estate be distant, a journey by vendor and vendee must be made, or in substitution, the expensive delegation by deeds of power to give and to accept livery, must occur. The expulsion of tenants and their families to make the livery effectual-the publicity of the proceeding, always unpleasant and frequently distressing-and other objectionable requisites, all, all are trifles unworthy of a thought so as to obtain a root of title." The feoffment has not even the redeeming merit of dispensing with the lease for a year stamp. There is no loop-hole in it to escape that duty. Still, I admit it is harmless when applicable; but the few occasions upon which its use is expedient do not justify the insinuation that its general adoption is avoided because of its cheapness. J. B. W. 296 Selections from Correspondence.-Superior Courts: Lord Chancellor's Court. SELECTIONS FROM CORRESPONDENCE. LAW OF ATTORNEYS. To the Editor of the Legal Observer. IN answer to the letter of your correspon- TAXING COSTS DURING THE HOLIDAYS. To the Editor of the Legal Observer. Sir, Allow me to call the attention of the profession generally to a subject of some considerable importance, as affecting the interests of themselves and their clients. By the stat. 3 & 4 W. 4, c. 42, s. 43, the holidays mentioned in 5 & 6 Edw. 6, c. 3, are abolished, except (inter alia) "the day of the nativity of our Lord, and the three following days." The stat. I Vict. c. 30. makes no alteration on that point. The following case will illustrate the grievance of which I complain. A plaintiff obtains a judgment in debt for want of a plea against a defendant for 1007, which judgment is signed on the 24th December, (no master being then in attendance) and cannot tax his costs, (without which, it is well known, no execution can be issued) until the 6th day of January. In the mean time the plaintiff has certain information of the defendant being at his family's residence in Wales to spend the Christmas, with about 4001. in his pocket, and that he is expected to embark at Holyhead for Dublin, on the 5th or 6th January; thus the defendant can openly remain in the country till the last monent, and the plaintiff be defrauded of the fruit of his judgment. This is not a feigned case for the purpose of calling the attention of the profession to the subject; and the injury that may occasionally result to the commercial public from no Mester being continually in attendance to tax costs, is incalcuble My suggestion is, that one of the 15 Mas Lord Chancellor's Court. PRACTICE.-RECEIVER.INJUNCTION. This Court may appoint a receiver to get in testator's estate in aid of an administrator of the Ecclesiastical Court, pendente lite; but such receiver is not to go upon property of the testator claimed by one of the parties under an assignment independently of the will; nor will the Court restrain such party from receiving the rents of the property comprised in the assignment. The bill stated, among other things, that Harriet Loyd, Spinster, of Rose Cottage, Kensington, lately deceased, made her will in December 1834, and thereby, after bequeathing several legacies (not necessary to be here men tioned), she gave unto William Toby (a defendant) 2007. and she gave the plaintiff her house, Rose Cottage, and several other houses held by her under long leases at Brompton, together with all her furniture, books, money in the public funds, &c., and all the residue of her estate and effects whatsoever for his absolute use, and she appointed plaintiff and said W. Toby her executors; that the defendant, Frederick Godrich, a surgeon, residing near Rose Cottage, became acquainted with said testatrix in 1835, and he alleged that in the month of October in that year, she revoked her said will, and made another, by which, after giving various legacies, amountion altogether to about 40007., she gave the said Toby and Godrich 2000l. to each, and appointed them her executors, that after executing said alleged last will, the testatrix went to reside at the house of defendant, Godrich, and, as he alleged, made her last will (revoking all former wills) in February 1836, whereby, after substituting similar bequests to several of the legatees named in her former wills, she gave 500l. to the said W. Toby, and 20001. to Affiel Godrich, son of the defendant, hed hvid attain the age of 21, but if not, then she diricted that sum to sink into the residue of her estate, which she gave to the defendant Go rich absolutely, and she appointed thiî her sole executor. The bill alleged that from the time of the date of the first will, (1834) the testatrix was quite imbecile, and incapable of Superior Courts: Lord Chancellor's Court. making a will up to the time of her death in 1838, at the age of 95 years, and during the last four years of her life, the defendant, Godrich, had complete control over her and her property, and he took possession of the same, and of her deeds and papers after her death, and he propounded the said will (of 1836) in Doctors' Commons for probate, against which the plaintiff entered a caveat; and he alone, W. Toby refusing to join him, instituted a suit there against Mr. Godrich, to establish the will of 1834, and resist that of 1836. The bill, after further alleging that the defendant pretended that the said Harriet Loyd had assigned to him by deed three leasehold houses, &c. at Brompton, prayed that an account might be taken of the rents and profits of the said leasehold houses, estates, and hereditaments, and all other the personal estate and effects of the said Harriet Loyd, possessed or received since her decease by or for the use of the said Mr. Godrich, and that the same may be received by this Court, pending the said litigation in the Ecclesiastical Court, and that some proper person may be appointed to collect the rents and profits of the said leasehold estates, and to get in all other the personal estate of the said H. Loyd, and that the same, and particularly so much thereof as came into the hands of the said F. Godrich, may be secured and paid into court, and vested, &c., until the proceedings in the Prerogative Court shall be brought to a conclusion; and, in the meantime, that F. Godrich be restrained by injunction from disposing of the said leasehold premises, or any part thereof, and from receiving the rents and profits of the same, or intermeddling with, or disposing of any part of the personal estate of the said Harriet Loyd. A motion was made before the Vice Chancellor for a receiver, and for an injunction as prayed by the bill, and his Honour granted them both. 297 with by the Ecclesiastical Court, but the property of the defendent under an assignment, the validity of which could not be tried in any question raised with respect to the will. Mr. K. Bruce and Mr. Russell on the other side argued, that it was the duty of the Court under such circumstances as the present, to preserve all the personal property of the deceased until the question at issue-whether the defendent had worked on the mind of the deceased so as to induce her to make a will in his favour, and to execute the assignment under which he claimed the leasehold houses,—was fairly decided. This was a case full of suspicion, considering the very advanced age of the testatrix, her removal after her first will to the defendant's house, and then altering her will, and giving the defendant-a stranger to her before that time-and to his family, such benefits as he claimed, not only by her will, but by an assignment in her lifetime, as he alleged. Upon the case made by the bill, the property must be held to have belonged to the deceased up to the time of her death. The contest was purely between plaintiff and Godrich. Either must be appointed executor. If the allegations in the will be supported, the defendent must be held to have obtained the property fraudulently. And this court had jurisdiction to appoint a receiver over all the property of deceased for its protection pending the suit. Among the numerous cases referred to on both sides, were Walker v. Woollaston, Alkinson v. Henshair, Ball v. Oliver, Watkins v. Brent,a Edmunds v. Bard, Marr v. Littlewood. The Lord Chancellor now gave judgment. The jurisdiction of appointing a receiver to protect the property of a testator pendente lite had been originally assumed by the Court of Chancery under the impression that an administrator appointed by the Ecclesiastical Mr. Wigrum and Mr. Bethell, in support of Court had no power to collect and protect an appeal in behalf of Mr. Godrich, from so the property of a deceased person pending a much of the Vice Chancellor's order as went to contest in that court. After, however, it was restrain him from receiving the rents of the decided in the case of Walker v. Woollaston, leasehold houses, and to appoint a receiver that an administrator appointed by that Court over them, read numerous affidavits to shew pendente lite, had power to protect the prothat the defendant took an assignment of the perty, and to maintain actions for debts due to houses, in consideration of the payment of a the deceased. The Court of Chancery had not sum of 980, and that sum was paid to the nevertheless abandoned its jurisdiction of aptestatrix, who returned it as part payment of pointing a receiver in aid of the Ecclesiastical three years' contemplated board and lodging at Court. In the present case both parties the price of 400l. a-year. The testatrix lived claimed probate of the estate of the testatrix; slong enough to enjoy the benefit of this anti-although it might turn out that neither of cipatory payment, and a further sum was then -given in the same manner out of her income, which was nearly twelve hundred a-year. Denying in the most positive terms any intention Lof defendant to sell the houses, they contended enhe Court ought not to restrain him from g the rents until such time as the plainshould please to bring his legal rights to a determination. In all cases of this description Court protected the personal property of stestator, by means of a receiver; but the pro<perty in these houses was not a part of the personal estate of this testatrix, to be dealt them was entitled; and the defendant claimed also to take certain leasehold houses under a deed of assignment, independent of his claims under the will. The defendant, therefore, claimed adversely to the estate of the testatrix. The case relied on in support of the order of the Vice Chancellor was that of Ed 298 Superior Courts: Queen's Bench. wards v. Bird, decided by Sir Thomas Plumer virtue of a warrant directed to him by the very soon after his becoming Vice Chancellor. Although no one could question the ability of that learned Judge, or deny him the merit of having exhibited great learning and acuteness, united with unwearied industry in the exercise of his judicial duties, yet it could not be supposed that he would have given the weight of his assent to an order so irregular and so contrary to principle, if he had at the time been more conversant with the practice of this Court. This was the more clear, as it appeared from the report that Sir Thomas Plumer's attention was not fully drawn to the nature of the application made to him in consequence of the defendant not having appeared. If, however, the deliberate authority of that learned Judge could have been cited in favor of such a practice, still it was one so contrary to principle that his Lordship could not give it his assent, and he was fortified in this opinion by a decision of Lord Hardwicke, in 2 Atkins. The order made in this case by the Vice Chancellor for a receiver in aid of the Ecclesiastical Court with respect to the matters in contest there must stand; but with respect to the leasehold houses which the defendant claims under the assignment, the order for the injunction and receiver must be discharged as to them. Jones v. Godrich and another. minster, Nov. 21, 22, and 23, 1839. Queen's Bench. [Before the Four Judges.] Speaker of the House of Commons, which stated a resolution of that House declaring that these gentlemen "having been guilty of a breach of the privileges of this House, be committed to the custody of the Sergeant-atArms, and that Mr. Speaker do issue his warrant accordingly," and it then, in virtue of such resolution, ordered the Sergeant-at-Arms to receive into his custody the said Messrs. Evans and Wheelton. Mr. Richards, Mr. W. H. Watson, and Mr. Kennedy took exceptions to the return for insufficiency; first, as not stating what the alleged breach of privilege was; next, as not directly declaring that there had been a breach of privilege committed, but as inerely declaring it by way of recital as "having committed," &c.; and further, that the contempt was not stated to be a contempt of the House, but only a contempt of the privileges of the House; and lastly, as not shewing any jurisdiction_to commit-it not appearing on the return that Mr. Shaw Lefevre, who had signed the warrant, was the Speaker of the House, or that he had issued this warrant from the House of Commons. They also contended that this not being a criminal matter, the Court was bound under the 56 Geo. 3, c. 100, s. 3. They referred to the judgment of this Court in Stock- At West-dule v. Hansard, and to affidavits to shew that the sheriff had been committed by the House for executing a writ of fi. fu. and paying over the money under à legal command from this Court. HABEAS CORPUS. PRIVILEGE OF PARLIA MENT. The House of Commons has the power of committing for contempt for breach of its privileges. A return to a writ of habeas corpus stating that " A. B. having been guilty of a breach of the privileges of this House," is a sufficient statement of the offence for which he is committed. The warrant need not set out with greater particularity the nature of the offence. Though if the warrant stated an insufficient cause of commitment, as by alleging some frivolous contempt, this Court would enquire into it. This Court has no jurisdiction to do so where the statement is in general terms, that the party has been guilty of contempt. In this case John Evans and John Wheelton, Esquires, Sheriff of Middlesex, had obtained a habeas corpus cum causa, to be directed to Sir William Gossett, the Sergeant-at-Arms, After a short consultation among the Judges, Lord Denman said, it appears to me necessary to declare, that the judgment delivered by this court in last Trinity Term, in the case of Stockdale v. Hansard, is, in all respects, perfectly correct. This Court then decided that there was no power in England which was above being questioned by the law; that the manner in which the privilege was there claimed by the late House of Commons, placed privilege on a footing of unquestionable and unlimited power. To all those opinions, then deliberately formed and expressed, I now, after full time for consideration, distinctly adhere, and all those On that occasion we took the law for our opinions, in my conscience I believe to be true. guide, and we shall resort to the same authority now, in deciding the case which is now brought before us on this writ of habeas corpus and the return. This is a writ of habeas corpus, calling on the Sergeant-at-Arms of the House of Commons to bring up the bodies of two gentlemen who have been imprisoned on the Speaker's warrant. That warrant is returned to us as the cause of their detention; and the only queswhether that warrant is, in point of law, a good cause for their detention. There are three objections made to the form of the warrant.' The first of these objections is, that there commanding him to bring up the bodies of tion for us now to considere Messrs. Evans and Wheelton, now detained in his custody, together with the cause of their detention. Sir W. Gossett appeared in Court with the bodies of the prisoners, and handed in a return, which set forth that Messrs. Evans and Wheelton were detained in his custody by a 18 L. O. 444. DITB Superior Courts: Queen's Bench, | 299 was no direct adjudication of the contempt. I said to be a contempt of the House, but only of The expression in the warrant is, that the the privileges of the House. To that I answer sheriffs "having committed" a contempt of by referring to the cases of the King v. Burdett, the privileges of the House of Commons, in which the same expression has been used, it was resolved that they should be com- and in which that expression has been held mitted to the custody of the Sergeant-at- good and sufficient. It seems to me, therefore Arms. It was observed that this was not a that all these verbal criticisms must fall to the direct statement of fact, and it was argued that ground, and that on the face of the warrant we the participle "having" could not be allowed cannot help seeing that this is a committal for to have that effect. It does so happen that in contempt, and that it is made by the authority a recent case from an inferior court, we gave of the House of Commons. If that is so, then that effect to a similar expression, and allowed we come to the great objection, which is that a statement by way of recital to be considered the facts out of which the commitment arose as a direct allegation of fact. Then the conse- are not fully set out so as to enable us to quence is, that in doing the same thing, we judge whether there is a proper ground for shall be merely adopting an enforcement of that commitment. It may be admitted that the ordinary law. It cannot be doubted that words of this sort have generally appeared in if the house is stated to have resolved that a cases of this class, so that it is correct to say contempt having been committed, the state- that the cases in which the facts have not been ment is equivalent to saying that a contempt specified appear in number to be but few. I has been committed, and a resolution of that will mention, however, one case, that of Sir house to place in the custody of the Serjeant- Francis Pemberton and Sir T. Jones, who at-Arms the individual guilty of committing were committed by the House of Commons in that contempt is an adjudication against him. 1689, in consequence of a judgment which The second objection is, that though the they give in their court; a judginent as just, House of Commons adjudicated that the party as reasonable, as lawful, and as necessary for had committed a contempt, and therefore that honest men and good lawyers to give as any he should be committed to the custody of the upon record, but for which these two Judges Serjeant-at-Arms, yet there is no order on the were confined under a warrant for contempt, Speaker to issue his warrant for that purpose. and sent into custody by the House, where they I must say that I do not think that that is at all remained till the end of the session. I mennecessary. We must take notice that the tion that case chiefly in order to correct a misSpeaker is an officer of the House of Com- take of no small importance, for I feel for the nions, and that when the House of Commons honour of this profession, and I believe that, adjudges that a contempt has been committed, after all, the fabric of society itself will be and decides that the party committing the con- found to rest most safely in the value set upon tempt is to be taken into custody, the Speaker personal character. In the resolution of the will be authorised from that instant, and with- House of Commons to which I allude, it has out any positively expressed direction, to issue been supposed most erroneously that Lord Holt his warrant to carry the resolution of the concurred. It is a mistake to suppose so. It is house into effect. also a mistake to suppose that the resolution to The third objection to the form of it is, that commit these Judges was adopted in the Conthe warrant not being dated from the House vention Parliament. The committal occurred of Commons, and the name of the House not in the year 1689. Lord Holt was made Lord being specified in the warrant, it does not ap- Chief Justice in April of that year, and this pear that "this house" is the House of Com-resolution to commit these two judges was not mons, but may be some other house, such as made till July of the same year. the House of Lords. I do not think that impossible therefore for him to have concurred there is any force in this objection. The war- in it. Having set right that mistake, I now rant recites the resolution of the House, refers pass to the cases of Brass Crosby, of Sir to no other house, and speaks of "this House" Francis Burdett, and of Mr. Hobhouse ; throughout. I think therefore, that there is where, upon the authority of the Shaftesbury enough to shew that the House against which case, such a distinct statement of the causes the contempt has been committed is the House was held to be unnecessary. It was so exby whose authority the warrant is issued and pressly held in the Shaftesbury case. That the parties are taken into custody. Then case is correctly enough stated to be open to again we see that the Serjeant at Arms certi- observation upon various grounds, but it is fies to us this warrant, and returns to us that not open to observation upon this particular it was in obedience to this warrant that he took ground, nor have I ever heard any observation these parties into custody, and that he now made upon it in this respect till this day, exdetains them; and he certifies that he does all this under a warrant issued "under the hand of head Speaker of the said House." Now, there only the House of Commons mentioned, and I cannot for a moment allow myself so to trifle with a plain, intelligible, and clear docums to say, that I can entertain Taunt. 401; 13 East, 27. any doubt upon the matter. The fourth objection taken is, that this is not It was b See their case stated 14 East 101 et seq. c 2 W. Bl. 754; 3 Wilson, 188. d 5 Dow. 165; 14 East, 1, 154, 163; 4 e 2 Chit. 207; 3 Barn. & Ald. 420. f 2 St. Tr. 615, 622; 1 Mod. 144. |