: The Student's Corner. such customs have been discussed or recognized and the presumption is, that, if attempted to be set up, they would, in all probability, be rejected as unreasonable. As authorities for my positions, allow me to refer your correspondent to 2 Bl. Com. (19th edition) 451, n. (27); 2 Sel. N. P. (9th ed.) 1403, 1404, 1410; Smith's Commercial Law, (2d ed.) 457-463; in which last mentioned treatise will be found a most comprehensive and luminous epitome of the existing law on the important subject of lien. Sir, WILLS ACT. D. 405 which he was aware consisted of a cottage and garden only, to H., a very distant connexion, and who happened to be the occupant of the said cottage and garden. G. afterwards dies without having altered his will by codicil or otherwise. Who then on his decease would be entitled to Greenacre? If it can be disputed that it would pass to H. by virtue of the words all other his real estate," I should be glad to know to whom it would go, and the grounds of such opinion. It seems clear that the resi duary devise would carry it. But assuming that there had been nothing in W's will which might be construed into a residuary deviseto whom in that case would it be said to go? It is submitted that B., the eldest son of W., would be entitled to it; likewise in the event of W. dying intestate. the lifetime of his testator,-in exclusion of elder collateral branches,-the bounty intended for such devisee; but it is greatly to be lamented that that charitable intention has been but imperfectly provided for. The section in question should be remodelled; but with a very slight alteration, by the introduction of a few words, it might be very much ameliorated in its operation. It is therefore humbly suggested to insert the words inclosed in brackets, which would, it is conceived, secure the benefits to the issue; at least much more satisfactorily than at present-" such devise or bequest shall not lapse but shall take effect for the benefit of such issue only] as if the death," &c. &c. D. C. In the Legal Observer of 28th December last, is a letter signed H. D. D. on the conThe object of the legislature has, no doubt, struction of the 33d section of the Wills Act, been a desire to secure to the issue of an inand stating a case in illustration of the sup-tended devisee, who should happen to die in posed operation thereof; which letter has been since commented upon in Legal Observer of 25th January by another correspondent, G. D. As your periodical is so universally circulated, and consequently so easy of reference, I shall not occupy your time or space by a recapitulation of the heads discussed in those letters, but at once proceed to make a few observations upon the above-mentioned section; with an especial view, however, to the chief point alluded to by those correspondents. Probability or improbability as to a testator's intentions would in no way influence the construction to be put on the act; and, although I do not presume to question what has been the intention of the legislature, yet I say we must abide by its language, and the meaning of that language. At the same time it must be apparent that the sooner that section is altered or explained the better. The case put by H. D. D. might be harsh and unjust in its consequences, or it might not, according to the circumstances attending it. The issue passed over in favour of a stranger might be an irreclaimable profligate, undeserving of any bounty whatever; but, on the other hand, it night be an unoffending innocent child of tender years, who would thus be left perhaps totally unprovided for, but which consideration would not change the effect of the act as it stands; therefore it does appear to me that by the terms of the 33d section, the stranger would take the benefit of the devise contained in the will of the original testator, in exclusion of the issue of the first intended devisee-the latter constituting the stranger his sole or residuary devisee. Of course we must all this time assume that no " contrary intention," as mentioned by the act, appears. Now let us vary the case a little in further illustration, the probability of which is less questionable than the other. Suppose, then, G. to devise his estate of Greenacre to W. who is possessed of two estates, Whiteacre and Blackacre, and dies in the lifetime of G, having by his will devised Whiteacre to his eldest son B., and Blackacre to another son, C., with a devise of all other his real estate," Sir, "the intention Your correspondent (v) seems to be of opi nion that the Courts would construe the 33d section so as to give effect to what is conjectured, and no doubt rightly conjectured, to have been the intention of the framer of the act, viz.: to prevent the children or issue of the deceased devisee from being deprived of the estate by the circumstance of his having died before the testator; I say of the framer of the act," for I find no preamble or recital from which it can be collected, judicially, what was the intention of the legis lature. I think the Courts could not so construe the act. The question is a very simple one, and it is this: How would the devise have taken effect if the death of the devisee had happened immediately after the death of the testator? And the answer appears to me to be equally easy :-It would have taken effect so as to vest the estate in the devisee, and if he died intestate, it would have descended to his heir at law, but if he left a will, containing sufficient words and duly executed, the estate would have passed by it. I cannot see how any other conclusion can be come to upon the words used. The section ought to have provided that the devise should take effect as if the devisee had died intestate immediately after the tes 406 The Student's Corner.-Power of Appointment in Purchase Deeds. tator. This defect can be only supplied by the legistature. Sir Edward Sugden is of opinion that the estate would pass by the devisee's will. See the last edition of his Vendors, p 260. C. M. POWER COUPLED WITH INTEREST. In 1813, testator devises, in substance, as follows, viz., I give and devise all my real and personal estate to G. and M., "and to their heirs and assigns for ever, to hold to said G. and M., and their heirs, upon trust to permit my three daughters to receive the rents and proceeds of his said estates until the youngest shall attain twenty-one; and when that event shall happen, then I direct iny said trustees with consent of such daughters as shall then be living, (but not otherwise) to sell and dispose of my said estates; and the monies arising therefrom, I direct my said trustees to pay and divide amongst ny said three daughters; and I direct that the receipts of my said trustees and of the survivor of them, and of the heirs, eaecutors, and administrators of such sur - | vivor, shall be good discharges to the purchasers, who shall not be answerable for the misapplication or nonapplication of the purchase monies. And I appoint said G. and M. executors of my will." In the same year by a codicil to said will, executed in presence of two witnesses only, testator says, "I revoke the appointment of First. Is it not clear that the devise to the trustees conferred on them the legal fee, and that, although the direction to sell did not run in the usual form, viz. (that they or the survivor of them &c. should sell), the power to sell would go to the survivor? Secondly. As the said first codicil was executed in the presence of two witnesses only, was it not inoperative as a revocation of the appointment of M. as trustee? Thirdly. If the codicil had been properly executed, would it have been an effectual substitution of H. in the place of G., considering that such substitution was not accompanied with an express devise to H.? Fourthly. If the second codicil was inoperative for want of being properly executed, was it not set up by the words of confirmation | in the third codicil ? . Fifthly. Is it clear that the conveyance by the trustee G. and testator's said eldest daughter, was sufficient? On referring to Sugden on Powers, I collect, that where a naked power is given to several persons, it will not survive, but that where it is coupled with an interest, as in the case of a devise to several and their heirs, upon trust to sell, such power may be exercised by the survivor, although not expressly so provided. If this be the case, it would seem that the words "survivors and survivor," usually inserted in trusts of this kind, are superfluous. CHASE DEEDS. . said M., as trustee and executor of my said POWER OF APPOINTMENT IN PURwill, and in his place appoint H. trustee and executor of my said will, and I direct this codicil to be taken as part of my will, hereby confirming my will in all other respects." In 1816, by a second codicil to said will, said testator after reciting said will and codieil to the above effect, proceeds as follows: "Now I revoke that part of my said will which directs my said daughters to receive the rents until the youngest shall attain twenty-one, and then, with consent of such of them as shall be of age, to be sold as therein mentioned. And I hereby direct the said G. and H., (the trustee substituted by the codicil for M.,) at any time after my decease, and with the consent of my daughter S. G., to sell and dispose of all my said real and personal estate, and the monies arising therefrom, I direct my said trustees or the survivor of them, his executors and administrators, in the first place, to pay off debts charged on my estates, and to place out the remainder on good securities; the interest thereof I direct shall be paid to my daughters until they shall respectively attain twenty one, and to pay the part or share to every daughter attaining twenty-one. And I direct this codicil to be taken as part of my will, hereby ratifying and confirming my said will and first codicil in all other respects." H., the substituted trustee, died shortly after the testator, and G., the surviving trustee, with consent of testator's daughter S. G., sold the real estate. To the Editor of the Legal Observer. YOUR correspondent, page 259, ante, un- a See p. 106 to 111, and 168, 4th edition, Sugden on Powers, and p. 596, Barton's Elements, v. 5, 590 to 599. Power of Appointment in Purchase Deeds.-Selections from Correspondence. 407 release, and the title be unobjectionable. Indeed, it is by no means so clear as your correspondent seems to imagine, that a purchaser can require the production of deeds referred to or recited in deeds of 60 years old, unless such reference or recital disclose some suspicious circumstance. Again as to the practice of conveyancing by the exercise of the power of appointment in purchase deeds, as well as by the release, I think your correspondent is mistaken as to the extent of it; for it may, perhaps, be safely asserted, that until a case to which I shall have occasion hereafter to allude, was decided, the mode of conveyance both by appointment and release, was not adopted at all so generally as he conceives. The true reason why "this power of appointment thus introduced" and "adopted of late years," as your correspondent complains, was so introduced, appears to have been the security which, according to the case of Doe d. Wigan v. Jones, 10 Barnewall & Cress. 459, was afforded to purchasers; and, in the case put by him, judgments entered up between the year 1800 and the period when L. M. might sell, and exercise his power, would be effectually over-reached by the appointment; and this too, as appears from the case of Eaton v. Sanater, 6 Sim. 517, whether the appointee had or had not notice. I agree with your correspondent in what he has remarked as to the object of preventing the dower of the wife of the purchaser from attaching, being effected more certainly by the severance of the freehold from the inheritance, by means of the usual limitations introduced subsequent to the exercise of the power, than by resort to the latter only; I would observe, that as to all purchasers married since the 2d of January 1834, the necessity of any introduction of a limitation of the estate for life of the trustee, among those usually inserted to the purchaser himself, is dispensed with; as a simple declaration by the latter that no wife of his shall become dowable is sufficient to bar her of dower. It remains only to say a word or two upon the concluding paragraph in the letter of your correspondent, in which he cautions his readers against inferring that he has offered any decided opinion as to the length of time that is sufficient to constitute a marketable title. Considerable weight is justly due to the opinions of both the learned and distinguished gentlemen whose statements on this point are alluded to. He is not perhaps aware, however, that a conveyancer-whose extent of practice, as well as high standing in the profession, entitle us to consider anything he states on this very important point as an authority equal to that of either of them-has expressed a very different opinion, which is published in Hayes' Introduction to conveyancing, p. 239 [3d edit.] I may also add it is still usual to require a 60 years' title in the Master's Office, and by this practice that of the profession must be regufated until we have a judicial opinion to the contrary. T. H. SELECTIONS FROM CORRESPONDENCE. NON-PAYMENT OF COUNTRY AGENTS. To the Editor of the Legal Observer. I have had my attention particularly directed to the subject of "Non-payment of London Attorneys to Country Agents." It would seem to be taken for granted by your correspondents, that the payment by the profession in town is of rare occurrence. There may be, as your correspondent observes, some black sheep of the profession that omit to do their duty in this particular, but I hope and believe they are comparatively few in number. What is the practice? An attorney in London forwards a writ into the country for service. If the agent is a stranger, he invariably looks into the Law List, and the character of the agent in town regulates him in his choice. The writ is served in a great number of cases-the amount of debt and costs is immediately paid-and the country agent forwards the amount thereof to the London attorney, less his own charges. Where the debt and costs are not discharged as above mentioned, it is almost the invariable practice for the country solicitor to forward to his town agent the affidavit of service, &c. which, of course, are never delivered up by the latter, without first payment of the charges. I have thought it right to trouble you with these hasty remarks, that the question may stand in its proper light. I would, in conclusion, suggest to the gentlemen in the country, (what has often been advised by the Masters on taxation of costs) to make out their charges more moderately, and to be content with the sum allowed to the attorneys in London without persecuting the latter for the sums deducted by the officer of the Court. A LONDON ATTORNEY. QUEEN'S BENCH JUDGMENT OFFICE. Being an old subscriber to your publication, and having always observed your readiness to expose any neglect or abuse, I take the liberty of calling your attention to the unjustifiable and injurious delay which takes place at the office where the judgments are signed in the Court of Queen's Bench. I myself attended there lately, having to sign a judgment, and will you believe it, although I was only about the ninth person in rotation, I had to wait one hour and a quarter to get my judgment signed! Now as the offices close at three o'clock in the vacation, and the masters also leave at that hour, it is important that parties should not be unnecessarily detained at the public offices during the time (which is so valuable to attorneys and the clerks to 408 Selections from Correspondence. transact their business in) that they are open. I the remaining three years of my clerkship at There was always great delay in transacting the same place in which the gentleman to the business at this office, and which was a whom I am articled resides? or can I to the source of great complaint in the profession satisfaction of the examiners when I apply for years ago; but surely as the parties are now adinission, serve the remaining three years at paid by government, and their time of attend- the office at D. I should feel greatly obliged ance much shortened, they ought to attend to if you or some of your numerous correspondtheir duties with all dispatch during their hours ents would be kind enough to advise on the of business. AN ATTORNEY. above. AN ARTICLED CLERK Could you inform me of the rules and regulations necessary to be observed by persons entering at the Inner Temple, and whether an articled clerk (his articles being cancelled) would be eligible to enter, and would his terms commence at the day of entering, or the expiration of his articles, if the same had not been cancelled? T. S. G. [We understand that no one can be admitted as a member of an inn of court whilst under articles. If they are cancelled, he is of course eligible. ED.] Sir, TAXING COSTS ON HOLIDAYS. [We think the validity of the service will depend on the attorney's attendance at the latter place. The residence will not be material. ED.] RESTRAINT ON ALIENATION. After reading your report of the case of Scarborough v. Borman, the question has occurred to me :- - What right has the Lord Chancellor to assume to himself the powers of the legislature?-for to subject any species of property to rules, which may affect the common-law rights of any parties, without their express or implied assent, appears to require the authority of parliament. be considered the absolute property of a feme sole should, upon her marriage, and independently of any contract, become subject to such regulations, I cannot comprehend. It may be well perhaps to admit that, by an agreement in contemplation of a marriage, the husband shall bind himself to allow to his wife the separate use of certain property; and in order farther to secure to her that benefit, (if IN reference to the letter of "An Attorney benefit it be) it may be proper to restrain her contained in a late number of your work-al-power of alienation; but why that which may though I cannot deny the existence of the inconvenience of which it complains, I think there are several ways in which any injury to the client might be obviated by the exertions of his attorney. In the first place, I believe it is the constant practice of the clerk of the judgments, in the absence of the Masters, to tax costs to which there is little or no opposition, and, in the second place, in default of the first being practicable, I think it would be the duty of an attorney, under the circumstances detailedjin that letter, to forego the costs incident to the judgment, and issue execution for the amount of debt and subsequent expences only. I believe this to be a course pursued by many of the profession on similar emergencies, and removing in a great measure the injury of which your correspondent complains. There is, no doubt, a considerable hardship in this sacrifice; but, as the proverb says of two evils choose the lesser one, it were far better to submit to the trifling rather than the greater loss. Sir, SERVICE OF CLERKSHIP. W. F. F. I WAS articled in January 1839, for five years, to B., who has two offices, one in the town of C., and the other in the town of D. B. lives at the former place, which is distant from the latter six miles. I have served two years at the office at C. and intend to serve the remainder at the office at D. Am I obliged to serve As a feme sole she may make what terms she pleases, previously to marriage, or, if she be under age, the guardian or the Court may do so for her; but if no such terms be made, I would submit that the law should take its course, "Volenti non fit injuriá.” The settler cannot complain of a disappointment, which every one must expect who attempts to contravene any rule of law. M. W. THE LATE SPECIAL COMMISSION. Sir, If your correspondent W. J. (page 313) will refer to the proceedings in the House of Lords shortly after the decision of the fifteen Judges, he will find that the Marquis of Normanby stated to the House that the petition of one of the prisoners, setting forth the same arguments as are adduced by your correspondent, and upon those grounds praying for a free pardon, had been referred to the Judges who tried the prisoners, and that Chief Justice Tindal had reported, that the Judges upon the trial entertaining doubts upon the objections raised, had decided the questions against the prisoners, and left them to appeal from such decision, and which had been done, and the majority of Correspondence.-Practice of Retainers.-Superior Courts: Lord Chancellor's Court. 409 the Judges constituting the Court of Appeal had held both the objection taken by the prisoner, and that on behalf of the Crown, to be good. Had the Judges taken time to consider of their judgment, or to consult the other Judges, the matter would not, I apprehend, have been argued in the Exchequer Chamber, but decided upon the arguments adduced at the trial, and the private advice and assistance of such of the Judges as those named in the Commission might choose to consult; whereas, in the present case, the objections were certified by Chief Justice Tindal for the opinion of the fifteen Judges, and counsel were heard in support and opposition to such objections. The objection being of a mere technical character was, I conceive, very properly defeated by a similar one-the prisoners asked for a strict interpretation of the law, which they were entitled to, and they had it,-there was therefore no ground for acquitting any of the prisoners, the juries having found them guilty of the crimes charged against them. THE NEW WRITS. Mr. Editor, H. B. Will you be so good to inform your readers, if the note at the end of the first form of the new writs of execution, p. 375 of your Saturday's journal "Note.-Tl.is and all other writs of execution may be made returnable on a day certain in term" required, or may be required, to further the views of the client in the case or cause under consideration; and that therefore the employment of any other counsel upon such an occasion, without application being made also to the counsel retained is an overt act of the option having been exercised in the negative; but any occasion requiring only the formal aid of counsel, as a mere matter of course, whereon no special argument is possible, nor allowed, has no operation whatever on the rights of retainer, for no professional discretion is in such a case required. The fact of a fee having been given higher than the usual one to an otherwise unretained counsel, even on a mere motion of course, I should consider, (until no intention to give an unusual fee was proved, for I could not impute "ignorance" as the source) as an overt act of a belief being entertained that some special aid from counsel was necessary; and of an intention to secure such by an extra fee, and that therefore the option had been exercised conscientiously, and by the rules of equity in the negative in regard to the retained counsel, if his services had in that instance been unapplied for. In regard to the case mentioned by you in your last number, you will scarcely find, I think, a member of the bar who will deny that an appearance for a plaintiff on a defendant's notice of motion to dismiss the bill is materially 99 66 as different from a mere motion of course," it must depend on the circumstances of the particular case, whether the motion to dismiss is a part of the new rules? If so, I presume if it ought to be granted, or if refused, upon what be desirable to make a ca. sa. returnable on a terms," and does not depend wholly and in"fixed forinality day certain in term time, the words "imme-controvertibly upon a mere diately after the execution hereof," should be being put into play by a mere punctual appliG. F., JUN. omitted, and the words " on day the day of in the year of our Lord one thousand eight hundred and forty," should be inserted. You will excuse my being thus particular in putting the question, because in these quibbling times, when the omission of the words "Anno Domini," although in this Christian era, are held to upset a whole legal proceeding, it is essentially necessary that forms prescribed by the Court should by their accuracy and certainty be placed beyond the reach of such ingenuities. CIVIS. [The note was extracted from a printed copy of the forms published "by authority." ED.] cation. SUPERIOR COURTS. Lord Chancellor's Caurt. SPECIFIC PERFORMANCE. JOINT STOCK COM PANIES.-PLEADING.-DEMURRER. Three persons, trustees for a public company, contracted in their own names for the purchase of property, chiefly consisting of mines, part of the purchase money paid down, part to be paid by instalments with interest, the property to be a security for the payment, and the contractors discharged from personal liability. They were let into possession, and their company worked the mines, taking away minerals to a large amount, whereby the property was diminished in value, and became an inadequate security for the unpaid purchase money, which the trustees and directors of the company postponed, having obtained on injunction against the vendor's taking any proceedings at law for the purchase money or the interest. The vendor, in a bill filed for specific performance against the individual contractors, and the trustees and |