« EelmineJätka »
gach customs have been discussed or recog-, which he was aware consisted of a cottage and nized : and the presumption is, that, if at garden only, 10 H., a very distant connexion, tempted to be set up. they would, in all and who happened to be the occupant of the probability, be rejected as unreasonable. said cottage and garden. G. afterwards dies
As authorities for my positions, allow me to without having altered his will by codicil or refer your correspondent to 2 Bl. Com. (19th otherwise. Who then on his decease would be edition) 451, n. (27); 2 Sel. N. P. (9th ed.) entitled to Greenacre? If it can be disputed 1403, 1404, 1110; Smith's Commercial Law, that it would pass to H. by virtue of the words (2d ed.) 457-463; in which last mentioned “all other his real estate," I should be glad to treatise will be found a most comprehensive know to whom it would go, and the grounds and luminous epitoine of the existing law on of such opinion. It seems clear that the resithe important subject of lien.
duary devise would carry it. But assuming D. that ihere had been nothing in Wi'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., Sir,
would be entitled to it; likewise in the event in the Legal Observer of 28th December last, of W'. dying intestate. is a letter signed H. D. D. on the con.
The object of the legislature has, no doubt, structiou 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 the lifetime of his testator,-in exclusion of since commented upon in Legal Observer eldercollateral branches,—the bounty intended of 25th January by another correspon lent, for such devisee; but it is greatly to be laG. D. As your periodical is so universally inented that that charitable intention has been circulated, and consequently so easy of refer- but imperfectly provided for. The section in ence, I shall not occupy your time or space question should be remodelled; but with a by a recapitulation of the heads discussed in very slight alteration, by the introduction of a those letters, but at once proceed to make a few words, it might be very much ameliorated few observations upon the above-mentioned in its operation. It is therefore huinbly section ; with an especial view, however, to the suggested to insert the words iuclosed in chief point alluded to by those correspondents. brackets, which would, it is conceived, secure
Probability or improbability as to a testator's the benefits to the issue ; at least ch more intentions would in no way influence the con. satisfactorily than at present—"such devise or struction to be put on the act; and, although bequest shall not lapse but shall take effect I do not presume to question what has been ( for the benefit of such issue only] as if the the intention of the legislature, yet I say we death,” &c. &c.
D. C. must abide by its language, and the meaning of that language. At the saune time it must
Sir, be apparent that the sooner that section is altered or explained the better. The case put
Your correspondent (¥) seems to be of opi. by H. D. D. might be harsh and unjust in its nion that the Courts would construe the 330 consequences, or it might not, according to section so as to give effect to what is conjec. the circumstances attending it.
The issue tured, and no doubt rightly conjectured, to passed over in favour of a stranger might be have been the intention of the framer of the an irreclaimabile profligate, undeserving of any act, viz. : to prevent the children or issue of bounty whatever; but, on the other hand, it the deceased devisee from being deprived of might be an unoffending innocent child of the estate by the circumstance of his having tender years, who would thus be left perhaps died before the testator ; I say "the intention totally unprovided for, but which consideration of the framer of the act," for I find no preamble would not change the effect of the act as it or recital from which it can be collected, stands; therefore it does appear to me that by judicially, what was the intention of the legisthe terms of the 33d section, the stranger lature. I think the Courts could not so conwould take the benefit of the devise contained strue the act. The question is a very simple in the will of the original testator, in exclusion one, and it is this : How would the devise of the issue of the first intended devisee-the have taken effect if the death of the devisee Jatter constituting the stranger his sole or re- had happened immediately after the death of siduary devisee. Of course we must all this the testator? And the answer appears to me time assuine that no contrary intention,” as to be equally easy :-It would have taken efmentioned by the act, appears.
fert so as to vest the estate in the devisee, and Now let us vary the case a little in further if he died intestate, it would have descended to illustration, the probability of which is less bis heir at law, but if he left a will, containing questionable than the other. Suppose, then, sufficient words and duly executed, the estate G. to devise his estate of Greenacre 'to W. would have passed by it. I cannot see how who is possessed of two estates, Whiteacre and any other conclusion can be coine to upon the
words used. Blackucre, and dies in the lifetime of G, having by bis will devised Whiteacre to his The section ought to have provided that the eldest son B., and Blackacre to another son, devise should take effect as if the devisee C., with a devise of;" all other his real estate, had died intestate immediately after the tes
POWER COUPLED WITH INTEREST.
406 The Student's Corner.- Power of Appointment in Purchase Deeds. tator. This defect can be only supplied by First.—Is it not clear that the devise to the the legistature.
trustees conferred on them the legal fee, and Sir Edward Sugden is of opinion that the that, although the direction to sell did not run estate would pass by the devisee's will. See in the usual form, viz. (that they or the surthe last edition of his Vendors, p 260.
vivor of them &c. should sell), the power to C. M.
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 ibe
appointment of M. as trustee? In 1813, testator devises, in substance, as Thirdly.-If the codicil had been properly follows, viz., I give and devise all my real and executed, would it have been an effectual personal estate to G. and M.," and to their substitution of H. in the place of G., conheirs and assigns for ever, to hold to said sidering that such substitution was not accomG. and M., and their heirs, upon trust to panied with an express devise to H. ?? permit my three daughters to receive the rents Fourthly.-- If the second codicil was in. and proceeds of his said estates until the operative for want of being properly executed, youngest shall attain twenty-one; and when was it not set up by the words of confirmation that event shall happen, then I direct iny said in the third codicil? trustees with consent of such daughters as Fifthly.- Is it clear that the conveyance shall then be living, (but not otherwise) to sell by the trustee G. and testator's said eldest and dispose of my said estates; and the monies daughter, was sufficient? arising therefrom, I direct my said trustees to On referring to Sugden on Powers,a I colpay and divide amongst iny said three daugh- lect, that where a naked power is given to several ters; and I direct that the receipts of my said persons, it will not survive, but that wbere it trustees and of the survivor of them, and of the is coupled with an interest, as in the case of a heirs, executors, and administrators of such sur- devise to several and their heirs, upon trust to viror, shall be good discharges to the pur- sell, such power may be exercised by the surchasers, who shall not be answerable for the vivor, although not expressly so provided. If misapplication or nonapplication of the pur- this be the case, it would seem that the words chase monies. And I appoint said G. and M. “survivors and survivor,” usually inserted in executors of my will."
trusts of this kind, are superfluous. F. In the same year by a codicil to said will, executed in presence of two witnesses only, testator says, “I revoke the appointment of 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
CHASE DEEDS. 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,
To the Editor of the Legal Observer. said testator after reciting said will and codieil Sir, to the aboca effect, proceeds as follows: Your correspondent, page 259, ante, un, “Now I revoke that part of my said will which der the signature of “a Country Conveyancer," directs my said daughters to receive the rents evidently writes under great misconception as until the youngest shall attain twenty-one, and to the reasons for the practice of preparing then, with consent of such of them as shall be of age, to be sold as therein mentioned. Andi purchase deeds of tee-simple lands by power hereby direct the said G. and H., (the trustee this mode is adopted; as well as in ignorance
appointment and limitation of uses, where substituted by the codicil for M.,) at any time of the Rule adopted in the investigation of after my decease, and with the consent of my titles, with reference to calling for an abstract daughter S. G., to sell and dispose of all my of any deed which happens to be referred to said real and personal estate, and the monies
upon the abstract, and which, when produced, arising therefrom, I direct my said trustees or if found to refer back to an antecedent deed the survivor of them, his executors and ad- I in a similar manner, involves, as he supposes, ministrators, in the first place, to pay off debts the necessity of the production of such prior, charged on my estates, and to place out the deed also, • and so backwards, ad infinitum." remainder on good securities; the interest I apprehend, with submission, that a deed of thereof I direct shall be paid to my daughters appintment and release 60 years old would be until they shall respectively attain twenty one, and to pay the part or share to every daughter regarded as a good root of title; because, adattaining twenty-one. And I direct this codicil been well exercised, to ascertain which the
mitting the power recited in it not to have to be taken as part of my will, hereby ratifying production of the earlier deed would be and confirming my said will and first codicil required, -the instrument would operate as a in all other respects.”
H., the substituted trustee, died shortly after the testator, and G., the surviving trustee, a See p. 106 to 1ll, and 168, 4th edition, with consent of testator's daughter S. G., sold Sugden on Powers, and p. 596, Barton's Elethe real estate.
ments, v. 5, 590 to 599.
Power of Appointment in Purchase Deeds.--Selections from Correspondence. 407
NON-PAYMENT OF COUNTRY AGENTS.
release, and the title be unobjectionable. Indeed, it is by no means so clear as your corres
SELECTIONS pondent seeins to imagine, that a purchaser can require the production of deeds referred to or
FROM CORRESPONDENCE. recited in deeds of 60 years old, unless such reference or recital disclose some suspicious circumstance.
Again: as to the practice of conveyancing by To the Editor of the Legal Observer. the exercise of the power of appointment in pur.
Sir, chase deeds, as well as by the release, I think your correspondent is mistaken as to the ex. I have had my attention particularly directed tent of it; for it may, perhaps, be safely to the subject of “ Non-payment of London asserted, that until a case to which I shall Attorneys to Country Agents.” It would seem have occasion hereafter to allude, was decided, to be taken for granted by your corresponthe mode of conveyance both by appointment dents, that the payment by the profession in and release, was not adopted at all so generally town is of rare occurrence. There may be, as as he conceives.
your correspondent observes, soine black sheep The true reason why “this power of ap- of the profession that omit to do their duty in pointment thus introduced” and “ adopted of this particular, but I hope and believe they are late years," as your correspondent complains, comparatively few in number. What is the was so introduced, appears to have been the practice ? An attorney in London forwards a security which, according to the case of Doe d. writ into the country for service. If the agent Wigan v. Jones, 10 Barnewall & Cress. 459, is a stranger, he invariably looks into the Law was afforded to purchasers; and, in the case List, and the character of the agent in town put by him, judgments entered up between regulates him in his choice. The writ is served the year 1800 and the period when L. M. in a great number of cases—the amount of might sell, and exercise his power, would be debt and costs is immediately paid-and the effectually over-reached by the appointment; country agent forwards the amount thereof to and this too, as appears from the case of the London attorney, less his own charges. Eaton v. Sanxter, 6 Sim. 517, whether the Where the debt and costs are not discharged appointee had or had not notice. I agree with as above mentioned, it is almost the invariable your correspondent in what he has remarked practice for the country solicitor to forward to as to the object of preventing the dower of the his town agent the affidavit of service, &c. wife of the purchaser from attaching, being which, of course, are never delivered up by the effected more certainly by the severance of the latter, without first payment of the charges. freehold from the inheritance, by means of the I have thought it right to trouble you with usual limitations introduced subsequent to the these hasty remarks, that the question may exercise of the power, than by resort to the stand in its proper light. I would, in conclulatter only; I would observe, that as to all sion, suggest to the gentlemen in the country, purchasers married since the 2d of January (what has often been advised by the Masters 1834, the necessity of any introduction of a on taxation of costs) to inake out their charges limitation of the estate for life of the trustee, more moderately, and to be content with the among those usually inserted to the purchaser sum allowed to the attorneys in London withhimself, is dispensed with ; as a simple decla- out persecuting the latter for the sums de. ration by the latter that no wife of his shall be ducted by the officer of the Court. come dowable is sufficient to bar her of dower.
A LONDON ATTORNEY. 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 agaiņst inferring that he has offered any deci. QUEEN'S BENCH JUDGMENT OFFICE. ded opinion as to the length of time that is
Sir, sufficient to constitute a marketable title. Considerable weight is justly due to the opi- Being an old subscriber to your publication, nions of both the learned and distinguished and having always observed your readiness to gentlemen whose statements on this point are expose any neglect or abuse, 'I take the liberty alluded to. He is not perhaps aware, however, of calling your attention to the unjustifiable that a conveyancer--whose extent of practice, and injurious delay which takes place at the as well as high standing in the profession, en- office where the judgments are signed in the title us to consider anything he states on this Court of Queen's Bench. I myself attended very important point as an authority equal to there lately, having to sigu a judgment, that of either of them-has expressed a very and will you believe it, although I was only different opinion, which is published in Hayes' about the ninth person in rotation, I had to Introduction to conveyancing, p. 239 [3d edit.] wait one hour and a quarter to get my judgI may also add it is still usual to require a 60 ment signed ! Now as the offices close at years' title in the Master's Office, and by this three o'clock in the vacation, and the masters practice that of the profession must be regu- also leave at that hour, it is important that lated until we have a judicial opinion to the parties should not be unnecessarily detained contrary
at the public offices during the time (which is Τ. Η. so valuable to attorneys and the clerks to
INNS OF COURT.
Sclections 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 ain articled resides? or cap 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 tiine 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 (More clerks should be employed, if requi
(We think the validity of the service will site. ED.)
depend on the attorney's attendance at the latter place. The residence will not be ma
terial. Ed.] Could you inform me of the rules and regulations necessary to be observed by persons
RESTRAINT ON ALIENATION. eutering at the Inner Temple, and whether an
Mr. Editor, articled clerk (his articles being cancelled) would be eligible to enter, and would his terms After reading your report of the case of commence at the day of entering, or the Scarborough v. Borman, the question has oc. expiration of his articles, if the same had not curred to me :- What right has the Lord Chanbeen cancelled ?
T. S. G. cellor to assume to himself the powers of
the legislature ?-for to subject any species of (We understand that no one can be admitted property to rules, which may affect the comas a member of an inn of court whilst under mon-law rights of any parties, without their articles. If they are cancelled, he is of course the authority of parliament.
express or implied assent, appears to require eligible. Ed.]
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 TAXING COSTS ON HOLIDAYS.
the separate use of certain property; and in Sir,
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 in- be considered the absolute property of a feme convenience of which it complains, I think sole should, upon her marriage, and independ. there are several ways in which any injury to ently of any contract, becoine subject to such the client might be obviated by the exertions regulations, I cannot comprehend. of his attorney. In the first place, I believe it As a feme sole she may make what terms is the constant practice of the clerk of the she pleases, previously to marriage, or, if judgments, in the absence of the Masters, to tax she be under age, the guardian or the Court costs to which there is little or no opposition, may do so for her ; but if no such terms be and, in the cond place, in default of the first made, I would submit that the law should take being practicable, I think it would be the duty its course, “ Volenti non fit injuria.” of an attorney, under the circumstances de The settler cannot complain of a disappointtailedżn that letter, to forego the costs incidentment, which every one inust expect who atto the judgment, and issue execution for the tempts to contravene any rule of law. amount of debt and subsequent expences only. I believe this to be a course pursued by many
M, W. 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
If your correspondent W. J. (page 313) will two evils choose the lesser one, it were far refer to the proceedings in the House of Lords better to submit to the trifling rather than the shortly after the decision of the fifteen Judges,
W. F. F.
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 Sir,
as are adduced by your correspondent, and
upon those grounds praying for a free pardon, I was articled in January 1839, for five years, had been referred to the Judges who tried the to B., who has two offices, one in the town of prisoners, and that Chief Justice Tindal had C., and the other in the town of D. B. lives reported that the Judges upon the trial enter, at the former place, which is distant from the taining doubts upon the objections raised, had latter six miles. I have served two years at decided the questions against the prisoners, the office at C. and intend to serve the remain- and left them to appeal from such decision, der at the office at D. Am I obliged to serve and which had been done, and the majority of
THE LATE SPECIAL COMMISSION.
SERVICE OF CLERKSHIP.
Correspondence.- Practice of Retainers.-- Superior Courts : Lord Chancellor's Court. 409
THE NEW WRITS.
the Judges constituting the Court of Appeal required, or may be required, to further the lsad held both the objection taken by the pri- views of the client in the case or cause under soner, and that on behalf of the Crown, to be consideration ; and that therefore the employgood. Had the Judges taken time to consider ment of any other counsel upon such an ocof their judgment, or to consult the other casion, without application being made also Judges, the matter would not, I apprehend, to the counsel retained is an overi act of the have been argued in the Exchequer Chamber, option having been exercised in the negative; but decided upon the arguments adduced at but any occasion requiring only the formal aid the trial, and the private advice and assistance of counsel, as a mere matter of course, whereon of such of the Judges as those named in the no special argument is possible, nor allowed, Commissiun might choose to consult; whereas, has no operation whatever on the rights of rein the present case, the objections were certi- tainer, for no professional discretion is in such fied hy Chief Justice Tindal for the opinion of a case required. the fifteen Judges, and counsel were heard in The fact of a fee having been given bigher support and opposition to such objections. than the usual one to an otherwise unretained
The objection being of a mere technical counsel, even on a inere motion of course, I character was, I conceive, very properly de. should consider, (until no intention to give an feated by a similar one-the prisoners asked unusual fee was proved, for I could not iinpute for a strict interpretation of the law, which "ignorance” as the source) as an overt act of they were entitled to, and they had it,—there a belief being entertained that some special aid was therefore no ground for acquitting any from counsel was necessary; and of an intenof the prisoners, the juries having found them tion to secure such by an extra fee, and that guilty of the crimes charged against them. therefore the optiun had beeu exercised con
scientiously, and by the rules of equity in the negatire in regard to thc retained counsel, if his services had in that instance been unap
plied for. Mr. Editor,
In regard to the case mentioned by you in Will you be so good to inform your reailers, your last number, you will scarcely find, I if the note at the end of the first form of the ihiuk, a member of the bar who will deny that new writs of execution, p. 375 of your Satur- an appearance for a plaintiff on a defendant's day's journal
notice of motion to dismiss the bill is materially Notr.-Tl.is and all other writs of execu- different from a mere motion of course, "“ tion may be made returnable on a day it must depend ou the circumstances of the certain in term".
particular case, whether the inotion 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 terins ;” and does not depend wholly and inday certain in term time, the words “imme. controvertibly upon a incre
fixed forınality.' diately after the execution hereof,” should be being put into play by a mere punctual appli
cation. omitled, and the words “ on
G. F., Jun. in the year of our Lord one thousand eight hundred and forty,” should be inserted.
SUPERIOR COURTS. You will excuse my being thus particular in putting the question, because in these quibbling times, when the omission of the words “Anno
Lord Chancellor's Caurt. Domini,” although in this Christian era, are held to upset a whole legal proceeding, it is SPECIFIC PERFORMANCE.-JOINT STOCK COM
PANIES.-PLEADING.DEMURRER. essentially necessary that forms prescribed by the Court should by their accuracy and cer.
Three persons, trustees for a public company, tainty be placed beyond the reach of such in
contracted in their own names for the pur. genuities.
Civis. chase of property, chiefly consisting of.
mines, part of the purchase money paid [The note was extracted from a printed
down, part to be puid by instalments with copy of the forms published " by authority.” interest, the property to be a security for
ED.) the payment, and the contractors discharged
from personal liability. They were let into
possession, and their company worked the PRACTICE OF RETAINERS.
mines, taking away minerals to a large amount, whereby the property was dimi
nished in value, and became an inadequate Mr. Editor,
security for the unpaid purchase money, In popular words, the effect of a retainer ac- which the trustees and directors of the comcepted is, in my estimation, this, that it entitles pany postponed, having obtained on inthe client retaining to a right of exercising his junction against the vendor's taking any option of employing or rejecting the services of proceedings at luw for the purchase money, the counsel retained upon any occasion first or the interest. The vendor, in u bill filed happening next after the said acceptance of re- for specific performance against the inditainer, whereon "" the discretion of counsel” is vidual contractors, and the trustees and