Page images

Power of Appointment in Purchase Deeds.


pointment. If its utility were in fact as circum- either case, the inference is the saine ; 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 par. where 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 pover 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 The case of Doe v. Jones, 10 B. & C. 457, heirs," and admires the conciseness, although followed by Skeeles v. Shearly, 6 Law J., that virtue may be obtained only by a sacrifice (n. s.) ch. 21, before the V. C., and 7 L. J., of recitals, covenants, and other trifling inci(n. s.) ch. 3, before the L. C., established that dents to a modern assurance. That recitals the exercise of the power in favour of a pur- may be superAuous, in the curious deduction chaser, gave him priority over the judgment of title contained in your correspondent's creditors of the vendor, although the purchaser letter, may be admitted. I say curious, be. had notice of the judgments; as a consequence, cause I do not believe that one title in a thou. the search for judgments became unnecessary, a sand consists of so smooth and harmonious a saving of expense, ample as a compensation string of transfers, so singularly free from all for a few extra folios, to say nothing of the devises, descents, and settlements, despite the freedom from all risk of oversight. So, where liability of an estate, in the course of fifty the owner was desirous of mortgaging, (a trans- years, to some of those antidotes to simplicity. action done always in the expectation of being But assuming that change of description in undone), the expensive search was again the property renders a recital to preserve avoided. The convenience resulting from the identity indispensable,—that subinterests call power in family arrangements must be al. for some mode of explanation, and that the lowed to have some weight in the minds of ordinary dealings of man preclude the hope those, who do not look to the vesting an estate of a general banishment of recitals, is there in a client as the sole end in view, but allow no efficacy in a contract, to control the purthemselves to be further influenced by a con- chaser's right of calling for deeds ? Where is sideration of how it is to be got out of him, and the solicitor or conveyancer who cannot make the innumerable modifications it will probably a root of title for a vendor, notwithstanding be subjected to, while in his hands. I forbear the deeds for the last century are all entangled? troubling you with a detail of the virtues of I am sure your correspondent will not respond the power, as I am sure, to a majority of your


perscn. readers, it would be unnecessary and tedious ; Your correspondent's panacea for imaginin candour, I must not omit to state, that the ative evils in the feoffinent—as a conveyance cases of Doe v. Jones, and Skeeles v. Shearly, of land held under a title as set forth by him, are, as respects the immediate purpose for --has the merit of consistent simplicity and which I cited them, interfered with by the rarity, and in its innocence from all useful recent act 1 & 2 Vict. c. 110; but your corres application to the more complicated affairs of pondent's reflections arose, “ in the course of modern times, may be regarded as interesting his practice in conveyancing," which I must by the lover of feudal formality. Nobody will suppose extended to a period more remote quarrel with its use-a title would not be oh. than the latter end of 1838, when the above jectionable because a feoffinent appeared in act came into operation.

the abstract. But its strongest admirer canno: The addition of the release is one of those be blind to its inapplicability to one case in a acts of caution, I hope to see always influence hundred-nor to its numerous inconveniences the profession for although not an inveterate where applicable. Should the estate be distant, adherent to old form and precedent, I should a journey by vendor and vendee must be made, be the last to encourage the temerity requisite or in substitution, the expensive delegation by to stake a client's money upon so delicate an deeds of power to give and to accept livery, assurance as a bare appointment.

must occur. The expulsion of tenants and their A further and greater objection urged by families to make the livery effectual—the pub). your correspondent, is the utter impossibility licity of the proceeding, always unpleasant and of a conveyance containing an appointment, frequently distressing--and other objectionable ever being made a root of title. He might requisites, all, all are trifles unworthy of a have stated his reasons for coming to such a thougbt so as to obtain “a root of title. The conclusion, instead of leaving us to imagine feoffinent has not even the redeeming merit of what particular misapprehension he was labour. dispensing with the lease for a year stainp. iunge ausder. Why an appointment is more in- There is no loop-hole in it to escape that duty. capable than a feoffment, I cannot conceive. Still, I admit it is barmless when applicable ; Haibe true, the exercise of a power sup- but the few occasions upon which its use is poses its existence, but not more so than the expedient do not justify the insinuation that conveyance of an estate by a man, (I care not its general adoption is avoided because of its by what assurance), leads to the conclusion cheapness.

J. B. W. he acquired it by some legitimate means : in


Selections from Correspondence.- Superior Courts : Lord Chancellor's Court.




ters should attend to tax costs in such cases, FROM CORRESPONDENCE, where the parties might suffer injury by delay.

It may be as well to mention that the provi

sion in the 1 & 2 Vic, c. 110, as to arresting To the Editor of the Legal Observer.

the defendant on a Judge's order is of no use Sir,

in the case mentioned, as we have no direct In answer to the letter of your correspon

evidence of the defendant's intention to leave dent E., under this head, in your Observer of the country. the 25th January last, I must admit, that on

AN ATTORNEY. looking to the cases he has there cited, my opinion was against the whole claim of A. and

[Are not the holidays susiciently, reduced in,

number? B. being set off; but I am now inclined to fear the fraudulent debtor would resort to new

If they were further diminished, we think they may claim a set off for the whole amount; as it is laid down in the authorities expedients or greater secrecy.-Ed. I have referred to that a person conducting proceedings in a Court of which he has not been admitted in the name of an attorney of

SUPERIOR COURTS.. that Court, is no objection to the costs, for the Court has the security of one of its oflicers the proceedings mentioned by E. were of

Lord Chancellor's Court. course conducted in the name of A. Again, PRACTICE.- RECEIVER.--INJUNCTION, where a party employed two attorneys, partners, to conduct a cause for him in the Palace

This Court may appoint a receiver to get in Court, and one only of them was admitted on

testator's estate in aid of an administrator the rolls of that Court, it was held that an

of the Ecclesiastical Court, pendente lite ;

but such receiver is not to go upon property action in the common form lay at the suit of them both, though the retainer was given to the

of the testator claimed by one of the parties attorney of the Palace Court only. See Arden

under an assignment independently of the v. Tucker, 4 B. & A. 815; and í Nev. & Man.

will; nor will the Court restrain such 759.

party from receiving the rents of the pro

perty comprised in the assignment. The bill stated, among other things, that

Harriet Loyd, Spinster, of Rose Cottage, KenTo the Editor of the Legal Observer. sington, lately deceased, made her will in De. Sir,

cember 1834, and thereby, after bequeathing Allow me to call the attention of the pro- several legacies (not necessary to be here men. fession generally to a subject of some consi- tioned), she gave unto William Toby (a defendderable importance, as affecting the interests ant) 2001. and she gave the plaintiff her house, of themselves and their clients.

Rose Cottage, and several other houses held By the stat. 3 & 4 W. 4, c. 42, s. 43, the by her under long leases at Brompton, toholidays mentioned in 5 & 6 Edw. 6, c. 3, are gether with all her furniture, books, inoney in abolislied, except (inter aliú) “ the day of the the public funds, &c., and all the residue of nativity of our and the three follo:ving her estate and effects whatsoever for his abso. days.” The stat. 1 Vict. c. 30. makes no lute use, and she appointed plain titf and said alteration on that point. The following case w. Toby her executors; that the defendant, will illustrate the grievance of which I coin- Frederick Godrich, a surgeon, residing near plain. A plaintiff obtains a judgment in debt Rose Cottage, became acquainted with said for want of a plea against a defendant for testatrix in 1835, and he alleged that in the 1001., which judgment is signed on the 24th month of October in that year, she revoked December, (no master being then in atten- her said will, and made another, by which, dance) and cannot tax his costs, (without after giving various legacies, amountiog allowhich, it is well known, no execution can be gether to about 40001., she gave the said Toby issued) until the 6th day of January. In and Godrich 20001. to each, and appoiiited the mean time the plaintiff has certain informa- them her executors; that after executing said tion of the defendant being at his family's re- alleged last will, the testatrix want to rešitte at sidence in Wales to spend ihe Christmas, with the house of defendant, Godrich, ant, as be about 2001. in his pochet, and that he is ex- alleged, made her last will (revoking all former pected to embark at Ibolylıead for Dublin, on wills) in February 1836, wherely, after subthe 5th or 6th January; thus the defendant stituting similar bequests to several of the can openly remain in the country till the last legatees named in her former wills, she gave moinent, and the plaintiff be defrauded of 5001. to the said W. Toby, and 200011 to Alidal the fruit of his judgment. This is not a Godrich, son of the defendant,uf herthid feigned case for the purpose of calling the at- attain the age of 21, but if noi,dien she di. tention of the profession to the suliject; and ricted that sum to sink into the residee of her the injury that may occasionally result to the estate, which she gave to the defonskunt or commercial public from no Mester being con- rich absolutely, and she appoinged hish fier tinually in attendance to tax costs, is incalcu. sole executor." The bill alleged that from tbe ble

time of the date of the first will, (1834) the My suggestion is, that one of the 15 Mas testatrix was quite imbecile, and incapable of Superior Courts : Lord Chancellor's Court.


making a will up to the time of her death in with by the Ecclesiastical Court, but the pro1838, at the age of 95 years, and during the perty of the defendent under an assigninent, last four years of her life, the defendant, God- the validity of which could not be tried in any rich, had complete control over her and her question raised with respect to the will. property, and he took possession of the same, Mr. K. Bruce and Mr. Russell on the other and of her deeds and papers after her death, side argued, that it was the duty of the Court and he propounded the said will (of 1836) in under such circumstances as the present, to Doctors' Commons for probate, against which preserve all the personal property of the dethe plaintiff entered a caveat ; and he alone, W. ceased until the question at issue-whether the Toby refusing to join him, instituted a suitdefendent had worked on the mind of the dethere against Mr. Godrich, to establish the will ceased so as to induce her to make a will in his of 1834, and resist that of 1836. The bill, favour, and to execute the assignment under after further alleging that the defendant pre- which he claimed the leasehold houses, ---was tended that the said Harriet Loyd had assigned fairly decided. This was a case full of susto him by deed three leasehold houses, &c. at picion, considering the very advanced age of Brompton, prayed that an account miglit be ihe testatrix, her removal after her first will taken of the rents and profits of the said lease to the defendant's house, and then altering her hold houses, estates, and hereditaments, and will, and giving the defendant—a stranger to all other the personal estate and effects of the her before that time and to his fainily, such said Harriet Loyd, possessed or received since benefits as he claimed, not only by her will, her decease by or for the use of the said Mr. but by an 'assignment in her lifetime, as he Godrich, and that the same may be received by alleged. Upon the case made by the bill, the this Court, pending the said litigation in the property must be held to have belonged to the Ecclesiastical Court, and that some proper deceased up to the time of her death. The person may be appointed to collect the rents contest was purely between plaintiff and Godand profits of the said leasehold estates, and to rich. Either must be appointed executor. get in all other the personal estate of the said if the allegations in the will be supported, the H. Loyd, and that the same, and particularly defendent must be beld to bave obtained the so much thereof as came into the hands of the property fraudulently. And this court had said F. Godrich, may be secured and paid into jurisdiction to appoint a receiver over all the court, and vested, &c., until the proceedings property of deceased for its protection pendin the Prerogative Court shall be brought to a ing the suit. conclusion ; and, in the meantime, that F. Among the numerous cases referred to on Godrich be restrained by injunction froin dis- boll sides, were Walker v. Woollusion,a Alposing of the said leasehold premises, or any kinson v. Henshair,) Ball v. Oliver,c Watkins part thereof, and from receiving the rents and v. Breni,d Edmunds v. Burd,e Murr v. Littleprofits of the same, or intermeddling with, or wood. disposing of any part of the personal estate of The Lord Chancellor now gave judgment. the said Harriet Loyd.

The jurisdiction of appointing a receiver to A motion was made before the Vice Chan- protect the property of a testator pendente lite cellor for a receiver, and for an injunction as had been originally assumed by the Court of prayed by the bill, and his Houour granted Chancery under the impression that an adthem both.

ministrator 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 bim from receiving the rents of the decided in the case of Walker v. Woollaston, leasebold houses, and to appoint a receiver that an administrator appointed by that Court over them, read numerous attidavits 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 aihe deceased. The Court of Chancery had not gum of 9801., and that sum was paid to the nevertheless abandoned its jurisdiction of aptestatrix, who returned it as part payınent of pointing a receiver in aid of the Ecclesiastical

three years' conteinplated board and lodging at Court. In the present case both parties the price of 4001. 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 payineni, and a further sum was then thein was entitled; and the defendant claimed given in the same inanner out of her income, also to take certain leasehold houses under a which was nearly twelve hundred a-year. De- deed of assignment, independent of his claims

bying in the most positive terms any intention under the will. The defendant, therefore, tak defendant to sell the houses, they contended claimed adversely to the estate of the testa

she Court ought not to restrain him from trix. The case relied on in support of the 4'the rents until such time as the plain- order of the Vice Chancellor was that of Edand should please to bring his legal rights to a determádation. In all cases of this description

a 2 P. Wms. 576. b 2 Ves. & B. 85. The Court protected the personal property of

c? Veg. & B. 96. sfestator, by means of a receiver, but the pro

d 1 Myl. & C. 97; 11 Leg. Obs. 59. perty in these houses was not a part of the

el Ves. & B. 542. personal estate of this testatrix, to be dealt 2 Myl. & C. 154; and 13 Leg. Obs. 454.

[ocr errors]


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. Speaker of the House of Commons, which Although no one could question the ability of stated a resolution of that House declaring that learned Judge, or deny him the merit of that these gentlernen “having been guilty of a having exhibited great learning an'l acuteness, breach of the privileges of this House, be united with unwearied industry in the exer- committed to the custody of the Sergeant-atcise of his judicial duties, yet it could not be Arms, and that Mr. Speaker do issue his warsupposed that he would have given the weight rant accordingly,” and it then, in virtue of of his assent to an order so irregular and so such resolution, ordered the Sergeant-at-Arms contrary to principle, if he had at the time to receive into his custody the said Messrs. been more conversant with the practice of this Evans and Wheelton. Court. This was the more clear, as it appear- Mr. Richards, Mr. W. H. Watson, and Mr. ed from the report that Sir Thomas Plumer's Kennedy took exceptions to the return for attention was not fully drawn to the nature of insufficiency: first, as not stating what the the application inade to him in consequence alleged breach of privilege was ; next, as not of the defendant not having appeared. If, directly declaring that there had been a breach however, the deliberate anthority of that learn- of privilege committed, but as iperely declaring ed Judge could have been cited in favor of it by way of recital as “having committed," such a practice, still it was one so contrary to &c.; and further, that the contempt was not principle that his Lordship could not give it stated to be a contempt of the House, but only his assent, and he was fortified in this opinion a contempt of the privileges of the House; by a decision of Lord Hardwicke, in 2 Atkins. and lastly, as not shewing any jurisdiction to The order made in this case by the Vice Chan- commit-it not appearing on the return that cellor for a receiver in aird of the Ecclesiastical Mr. Shaw Lefevre, who had signed the warCourt with respect to the matters in contest rant, was the Speaker of the House, or that he there must stand; but with respect to the had issued this warrant froin the House of leasehold houses which the defendant claims Commons. They also contended that this not under the assignment, the order for the in-being a criminal inatter, the Court was bound junction and receiver must be discharged as under the 56 Geo. 3, c. 100, s. 3. They reto them.

ferred to the judgment of this Court in Stock· Jones v. Godrich and another. - At West. dule v. Hansard, a and to affidavits to shew that minster, Nov. 21, 22, and 23, 1839.

the sheriff had been committed by the House

for executing a writ of fi. fu. and paying over Queen's Beuch.

the money under à legal command from this

Court. [Before the Four Judges.]

After a short consultation ainong the Judges,

Lord Denman said, it appears to me neces

sary to declare, that the judgınent delivered The House of Commons has the power of of Stockdale v. Hansard, is, in all respects, per

by this court in last Trinity Term, in the case committing for contempt for breach of its fectly correct. This Court then decided that privileges.

there was no power in England which was A return to a writ of habeas corpus stating above being questioned by The law; that the

that A. B. having been guilty of a breach manner in which the privilege was there claimed of the privileges of this House,is a suffi- by the late House of Commons, placed privilege cient statement of the offence for which he on a footing of unquestionable and unlimited is committed.

power. To ali those opinions, then deliberately The warrant need not set out with greater formed and expressed, I now, after full time particularity the nature of the offence.

for consideration, distinctly adhere, and all those Though if the warrunt stated an insufficient On that occasion we took the law for our

opinions, in iny conscience I believe to be true. cause of commitment, as by alleging some frivolous contempt, this Court would en

guide, and we shall resort to the same authority quirs into it

. This Court has no juris- now, in deciding the case which is now brought diction to do so where the statement is in before us on this writ of habeas corpus and ihe

return. general terms, that the party has been

This is a writ of habeas corpus, calling on the guilty of contempt.

Sergeant-at-Arms of the House of Commons In this case John Evans and John Whcelton, to bring up the bodies of two gentlemen who Esquires, Sheriff of Middlesex, bad obtained have been imprisoned on the Speaker's wara habeas corpus cum causa, to be directed to rant. That warrant is returned to us as the Sir William Gossett, the Sergeant-at-Arms, cause of their detention; and the only quescommanding him to bring up the bodies of tion for us now to consider is, whether that Messrs. Evans and Wheelton, now detained warrant is, in point of law, a good cause for in his custody, together with the cause of their their detention. There are three objectiðhs detention.

made to the form of the warrant. Sir W. Gossett appeared in Court with the The first of these objections is, that there bodies of the prisoners, and handed in a return, which set forth that Messrs. Evans and Wheelton were detained in hin custody by

18 L. 0. 444.





Superior Courts : Queen's Bench.


was no direct adjuification of the contempt. / 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 sheritfs " 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 coin 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 Cominons. If that is so, then that effect to a similar expression, and allowed we come to the great objection, which is that a statement hy 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 comunitment. 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 slated to have resolved tbal 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,b who at-Arins the individual guilty of committing were committed by the House of Commons in that contempt is an adjudication against himn. 1689, in consequence of a judgment which

The second objection is, that though the they give in their court; a judgment as just, House of Commons adjudicated that the party as reasonable, as lawful, and as necessary for bad committed a contempt, and therefore that honest inen 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 inisSpeaker is an officer of the House of Com- take of no small inportance, 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 comınitting 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 Cominons to which I allude, it has out any positively expressed direction, to issue been supposed most erroneously that Lord Holt bis warrant to carry the resolution of the concurred. It is a mistake to suppose so. It is honse into effect.

also a mistake to suppose that the resolution to The third objection to the form of it'is, that comunit 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 inade Lord being specified in the warrant, it does not ap- Chief Justice in April of that year, and this

this house” is the House of Com. resolution to compit these two judges was not mons, but may be some other house, such as made till July of the same year. It was 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,c of Sir to do other house, and speaks of "this House" | Francis Burdett, d and of Mr. Hobhouse ;e 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 exbuy 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 Arins 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 the Speaker of the said House.” Now,

only the House of Commons men- b See their case stated 14 East 101 et seg. tioned, and I cannot for a moment allow my- c 2 W. Bl. 754; 3 Wilson, 188. self so to trifle with a plain, intelligible, and d 5 Dow. 165; 14 East, 1, 154, 163; 4 clear document, as to say, that I can entertain | Taunt. 401; 13 27. doubt upon the matter,

e 2 Chit. 207; 3 Barn. & Ald. 420. The fourth objeotion taken is, that this is not f 2 St. Tr. 615, 622; 1 Mod. 144.

pear that




« EelmineJätka »