Legal Education in Ireland.— Regulations of Divorce Committee.-Student's Corner. 455

the deputation, but suggested the propriety of having the opinion of the Chancellor and law officers in Ireland upon the subject before pledging himself to any course.

We have watched with particular interest the progress of this highly creditable institu tion from its origin. The plans and course of instruction adopted in the school we have carefully investigated, and the particulars of which were given in a former number. We are aware that the system has met with the strongest approbation from many of the law professors in London, and we conceive the entire course reflects credit on those who have regulated the system of study in its respective departments, evincing, as it does, intimate acquaintance with the plans followed in the three institutions in London, where the study of the law is cultivated.

and to be open to the inspection of every member of the committee; and the committee clerk is to give four days' notice of every meeting of the commit.ee to the several members thereof.

2d. That the agent be required to prove service upon the party from whom the petitioner seeks to be divorced, of a copy of the bill and of the order of commitment, and order for the attendance of parties, witnesses, counsel and agents; also to produce examined copies of the judgment in the action at law, and of the judgment in the action in the Ecclesiastical Court, except in those cases from India, in which evidence of the judgments in an action of trespass and in the suit for a divorce is iucluded in the proceedings transmitted from thence, in pursuance of the act 1 Geo. 4, c. 101, "To enable the Examination of Witnesses to be taken in India in support of Bills of Divorce on Account of Adultery committed in India."

The question for the government to consider is not whether a good law school in Ireland would be useful, for that has been well estab- 3d. That in all cases in which the bill is oplished by the founders of the Dublin Law posed and the facts contested (except cases Institute. The question, if there be one, is, provided for by the said act of George 4), the whether any purposes are likely to be answered preamble will be required to be proved-accordby incorporation, which are not equally an- ing to the laws of evidence, in the same manswered by an unincorporated association. We ner as if the case had been heard at the bar feel that a charter would excite alike a laudable of the House, under the system existing preperseverance on the part of the founders, thevious to the session of 1839. professors, and the promoters of the institution. 4th. That in all cases which are not opposed, It would awaken public attention, and encou or where the facts are not contested, the agent rage the study of the law as a science. It would will read to the committee, from the official raise the tone of professional thinking, and in- copy of the evidence received by the House of crease the value which should attach to pro- Lords and referred to the committee, such fessional knowledge. It would secure perma-testimony as shall appear to him sufficient to nence and improvement to a system, the establish the preamble of the bill; but the absence of which may have excited sufficient committee will be entitled to require, as well interest to originate and found, but which, how-in opposed as in unopposed cases, that any ever good in itself, may require countenance to further part or the whole of the evidence so perpetuate. For the present we take leave of referred shall be read, or that additional evithis valuable institution, wishing it the success dence he adduced. to which it is entitled.

5th. That in all cases in which the petitioner for the bill has attended the House of Lords upon the second reading of the bill, he be required to attend also to answer any questions

REGULATIONS OF THE DIVORCE the select committee may think fit to require

COMMITTEE.

We have already stated that divorce bills, in their passage through the House of Commons, are now referred to a select committee of nine members instead of a committee of the whole house, (see ante, p. 290). The Select Committee have made the following regulations :

:

that he should answer.

J. W. Freshfield, Chairman.

16 March, 1840.

THE STUDENT'S CORNER.

MERGER OF TERM.

1st. That two days before the sitting of the Sir, committee on any divorce bill, a print of the IN answer to your correspondent "An Artibill and a copy of the evidence adduced, pre- cled Clerk" with reference to a case proposed vious to the second reading of the bill in the by him in page 315 of your present volume, I House of Lords, be furnished by the agent for beg leave to make the following remarks. The the bill to each member of the select commit-case is this. "A. conveys to B. for valuable tee, in cases in which the evidence has been printed for the use of the Peers; but where the evidence shall not have been printed, then a manuscript copy is to be furnished within the same period to the chairman only; but in all cases the evidence communicated by the House of Lords is to remain with the committee clerk from the time of the commitment of the bill,

consideration; the draft is by mistake drawn to and to the use of C., in trust for B. the purchaser. After which follows an assignment of an outstanding term from D. to C., in order to merge. The engrosment is subsequently altered, and the conveyance executed to C. to the use of B. But the assignment of the term remains.' The question is, whether C.

has a sufficient estate to merge the term, so | that the whole may pass under the limitation of use to B." Now in order to gain a clear conception of the matter in dispute, it is my opinion reference must be made to the operation of the gift prior to the Statute of Uses, a source from whence many of the most intricate and perplexing questions arising out of the statute have been repeatedly unravelled and explained.

Before the statute the limitations would stand in the order they now do, by the alteration in the engrossment, (the assignment remaining as above); viz. from A. to C. to the use of B.; here clearly, before the statute, C. is legal owner or feoffee, and B. the equitable owner or cestui que use; C. by the conveyance becomes seised of the legal fee, and by the assignment, possessed of the legal term, which union of the two estates in him induces and compels a merger. As the tendency, and in fact essence, of a merger (as the name imports) is the drowning and complete extinction of the lesser in the greater or subsequent estate, it follows as a consequence, both upon reason and principle, that to the interest of B., the cestui que use, the separate existence of the two estates is unknown, and as though they had never existed, And it could not in strict propriety or technical accuracy be said, that B. was entitled to the equity of the term, and the equity or use of the fee, as distinct and separate, but rather that he was entitled to the equity of the whole as consolidated by the union in B. And moreover, the estate, both legal and equitable, would pass in any subsequent devolution or alienation, undivided and entire, the combination being so complete and forcible in the contemplation of law and equity as to require the same means and power to dissever as were used to create it.

question do vest in him, is certain: else how could they be drawn out of him? And if the momentary residence of the seisin in the feoffee or releasee is sufficient (as must be admitted by all who do not subscribe to the doctrine of Scintilla juris et titule, with all its metaphysical subtleties and refinements) to impress it with all the uses and confidences, either future, springing, or contingent, which it might afterwards have to supply ulterior to its execution in the party in esse to receive it, is there any plausible reason for doubting the sufficiency of that temporary locality to subject the estates in him (the feoffee or releasee) to the operation and consequence of a merger, and thus furnish an answer as well to the 3rd as to the 5th of the above queries, which is solely dependent upon the 3rd, the 4th being self-evident. If these premises be correct, it is clear that the term in the case before us passes as a part, an undivided and indefinite part, of the whole; because swallowed up and extinguished in the whole under the limitation to B. And the reservation in the statute mentioned by your correspondent as to termors for years can have no bearing on the matter here, that admitting and contemplating the term as a distinct disjointed estate, and not incorporated into another by the operation of what may be called a species of legal attraction under the techni cal name “merger."

Sir,

X. X.X.

IN endeavouring to reply to the question put by your correspondent, "An Articled Clerk,” (p. 315, ante), whether, under the circumstances of the case stated, C. has a sufficient estate to merge the term, so that the whole may pass under the limitation of use to B.; or whether, as your correspondent himself is If such then be the case before the statute,"rather inclined to think," the legal estate in how does it stand now? The statute transfers the term remains in C., in support of which the possession to the use, or, in other words, af- latter view he quotes the express saving in the fixes on it the legal estate, adjudging the "ces- statute of uses in favor of termors for years. tui que use in lawful seisin, estate, and posses- I shall begin by citing, upon this saving the sion of the lands, &c., in such like estate as he language used by the learned author of "A had or should have in use, trust, or confidence Practical Treatise on Conveyancing," in his 3d of or in the same." The effect of this plastic vol., which relates entirely to the question of energy of the statute is nothing more then than merger; and who says, (p. 369), “this proto consolidate and make corporeal the use, to vision of the statute (of uses) extends to all constitute it legal instead of equitable, to draw cases in which a conveyance is made to any out the estate of the feoffee or releasee, and exe-person for the purpose of raising uses on the cute it in cestui que use. It alters not therefore estate conveyed to that person. All the cases the quantity of the estate of the cestui que use, which have arisen on this statute, as well as the neither does it diminish it or the legal inci- words of the statute itself, prove that there is dents pertaining to it for the time being in the an exemption from merger under this statute feoffee. The estate receives its legal confirm-in those cases only in which the owner of the ation and adjustment in the feoffee. For does not he still take an estate in fee? Do not the estates in question vest and unite in him now as before the statute? Does not the legal attribute of merger attach on them now as before? Is not the only difference that their time of abode in him is interrupted and contracted? And are they not transferred from him by the operation of the statute in their incorporated and whole condition? That he does take a legal estate, and that the estates in

term or particular estate is the instrument mediately or immediately for raising the uses, so that the uses are to arise out of the estate conveyed to hiin.

I would next remark, that the case of Cheney, reported 4 Leon. Moor. 106, pl. 345, which was the first decided after the statute passed relative to this provision of it, of which we have any report, lends its aid in support of the above view of the question. As to the class of cases to which allusion is made by your

a

The Student's Corner. -Selections from Correspondence.

457

to an expression of the object and intent as strong as existed in this case; bound as these courts always consider themselves to be, to give full weight to what is actually expressed by par ties to a deed, as being best calculated to explain their meaning: I am compelled to come to the conclusion that C. took "under the conveyance, an estate sufficient for the purpose of merging the term;" that the term in fact, was a merger at law, and "the whole must pass under the limitation of the use to B." For it is clear the exceptions in favour of those who have an instantaneous or temporary seisin are allowed on equitable gounds; and Mr. Preston, from whose work I have already quoted, states in his 12th chapter, p. 273, explicitly, that the exemption which arises in those cases which (independently of the saving in the statute which we have been discussing) are within the exception of the law on the merger of estates, does not apply between trustees and cestui que trusts, and that though both estates may be held by the same person on the same trusts, the doctrine of merger will operate on these estates. For "as to legal estates (he contiuues) the exception to the application of this doctrine, extends to those instances

correspondent, wherein an estate passed into a | fact, courts of law will not give their sanction person and out of him immediately again, to any construction of a conveyance contrary under the old law of fines and recoveries; of these I may cite that of Sir John Ferrers und others v. Sir Richard Fermor and others, Cro. Jac. 643, and also Fountain v. Cook, 1 Mod. 107, which latter was a case of the lessee of a term for years being made tenant to the precipe for suffering a common recovery; and whilst speak ing of the effect of the mere conveyance in the case put to C., as releasee to uses or "conduit pipe," I may cite the language of Lord C. J. Tindal in his judgment in the case of James v. Plant, 4 Ad. & Ell. 749, first premising that the point to be decided there was-whether a unity of seisin of a piece of land, and of a way over that land, in one and the same person, extinguishes or suspends the right of way? It so happened that, in this case, two estates had been conveyed with a view to a partition by coparceners, to one and the same trustee; but, as to the estate over which the right of way ran, the conveyance made to him was as mere releasee to uses ouly." In this respect therefore the trustee there stood in precisely the situation as C. does in our present case, and on this the learned C. J. observes : "With respect to such releasee, it is a known doctrine, that since the statute, he takes no interest whatsoever in the land: that, on this ac-only in which one person has the legal ownercount, it can neither escheat nor be forfeited, nor is it subject to dower or curtesy, on account of his momentary seisin, and we know of no authority, and without it there is no reason, for holding that such momentary seisin of the land shall operate to extinguish a right of way by unity of seisin." I need scarcely remark how much your correspondent's argument "by analogy &c." as he has termed it, is corroborated by this. In perfect accordance with the view we are now taking of this provision of the statute, are the remarks of another learned author on Real Property Law, Sir Edward Sugden, who, in his last valuable edition of Gilbert's Uses and Trusts, says in a note to p. 183, (3d. Edit.) "The statute has a provision which saves to feoffees &c. to uses, all such former rights as they might have had to their own proper use: therefore if a termor for years he made a feoffee to uses, his term is saved by the statute and not merged, and it is not material that the termor holds the lease in trust; the same rule must, it is conceived, prevail even where the conveyance is by lease and release.

ship of several estates in different rights, viz. one in his own right and the other in another right, and in which the law, as distinguished from equity, takes notice of these different rights." "Over the beneficial ownership under the trust, Courts of Equity alone have jurisdiction." Supposing therefore the merger to be complete at law, the relief in the case put, must lie in equity; but this is a question into which I cannot enter fully here, and will only further observe, that if the definition Mr. Preston in one part of his work gives of merger be strictly correct, viz. that it is the conclusion of law from the supposed intention that two estates should not exist distinctly," it is perhaps scarcely to be expected that equity will interpose under circumstances like the present, when we are not left to conjecture or to suppose the intention alluded to, but have a decided expression of the intention that two es tates shall merge and not exist distinctly.

SELECTIONS

T. H.

FROM CORRESPONDENCE.

POWER COUPLED WITH INTEREST.

To the Editor of the Legal Observer. Sir,

After what has been above stated, I could have had no hesitation in acquiescing in your correspondent's suggestion, that in the case put "the legal estate in the term remains in C." and was saved from merger; but that the term, as it would appear from the language of your correspondent, was assigned to this releasee to uses, C. "in order to merge." It IN endeavouring to solve the questions raised must be ascertained therefore how far the by your correspondent "F." p. 406, ante, I matter is affected by this expression of inten- shall take the liberty, after disposing of his tion, if, as is stated in the case of Morris v. Ed-first query, of observing upon the rest of them, gington, 3 Taunt. 24, by Lord C. J. Mans-in an order somewhat differing from that in field, "All deeds are to be most strongly taken which he has put them. I shall, then, only against the maker;" and if, as seemingly is the remark, as to the first query, that there can be

458

Selections from Correspondence.

no doubt that the devise to G. and M., as it | ported cases which might be adduced to the stands originally, conferred on them the legal like effect, the legal estate in the real property fee, as there are sufficient words of limitation, of our testator was vested in H. (the substituted "and to their heirs and assigns for ever." The trustee) jointly with his co-trustee G., up to words added to the devise too, constitute a full the decease of the former (H.), and that upon and indisputable trust for sale, which it is this event the entire legal estate became vested clearly admitted by the authorities will sur- in the latter. vive.

It remains only to determine whether, acI propose next to reply to the second and cording to your correspondent's fifth query, fourth queries, which are in these terms: "As it be "clear that the conveyance by the trustee the said first codicil was executed in the pre- G. and the testator's said eldest daughter was sence of two witnesses only, was it not inopera-sufficient." I think we may assert, after what tive as a revocation of the appointment of M. as trustee? And "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?" I might refer to the case of Moneypenny v. Bristow, 2 Russ. & Myl. 117, and the cases cited in it, as to the general rule that a codicil duly attested amounts to a republication of a will; but I think the cases of Utterton v. Robins, 1 Adol. & Ell. 423, and Gordon v. Lord Reay, 5 Sim. 274, are both so much in point that I may cite them as answering the last above-mentioned (or fourth) query in the affirmative, and therefore the fact to which the second query points is of no further moment.

has been observed above, that in a court of law G. would be considered as enabled to make a good title to the legal estate in the premises sold; and as little doubt can there be, that, under the trust for sale, and with the consent of the testator's daughter S. G., evidenced by her concurrence in the conveyance, he can make a complete title to the equitable estate therein. The only possible question which, in my mind, could be raised is this: How far the testator's not having (when in the second codi. cil of 1816 he directs G. and H., with the consent of his daughter, to sell all his real estate &c.) repeated the direction which he added to the similar trust for sale created by his will; viz. "that the receipts of his said trustees and of the survivor of them, and of the heirs &c. of such survivor shall be good discharges to the purchasers," &c., is material as far as regards the full and complete discharge of the purchaser for his purchase-money. But I confess, that as to this, I feel satisfied, looking at all the instruments together, a Court, taking into consideration, as they always do, the apparent intention of the testator, (fully expressed indeed in his will, though not in the second codicil) would certainly hold that, on the whole, the power to give effectual receipts still remained to the surviving trustee who sold.

T. H.

EDUCATION OF ARTICLED CLERKS.

Sir,

Having thus established that H. is by the effect of the second codicil duly appointed a trustee in M.'s stead, we come to the third query, whether such appointment was an effectual substitution of H. in the place of M., considering such substitution was not accompanied with an express devise to H?" In other words, did the legal estate in fee in the property devised by the will which we have above considered the terms of the devise clearly conferred on M., jointly with G., vest in H. without any devise? And this I think I may venture to answer also in the affirmative, under the authority of the case of Anthony v. Rees, 2 Cro. & Jervis 75. In that case it is observable, there was no actual devise of the estate any more than in the case now in question, the trustees being in fact appointed only as "trustees to look that justice should be duly ad- Having ever had the reputation of an incor. ministered between the said parties." The rigible idler, it should seem highly presuming trustees in that case had only to pay 107. yearly in me to trouble you with any remarks on the and every year out of a freehold to the wife of conduct or compositions of confirmed wisthe testator, and the language of Lord Lynd- dom or sensible suggestion," were it not that I hurst, C. B., is as follows: "Now the trus- have also been lauded for some discernment in tees cannot perform the duties imposed on matters that I have voluntarily taken under them, unless the legal estate is vested in them." review. It may, Sir, have surprised others with Bailey, B. puts the case (so far as our present myself that among the many salutary admonipurpose is concerned) on still more satisfac- tions you impart for the government and guidtory grounds; for, after observing "When ance of attorney's clerks, preparatory to the trustees are directed to do any thing, for the practice of their profession, few, if any of your performance of which the legal estate is requi- critisisms should ever have extended to the site, then they are to have the legal estate;" condemnation of the present mode of passing he adds " Upon the whole, I entertain no that most pleasant period! Fearful of a seemdoubt that the legal estate was vested in the ing want of deference to those whose course of trustees, it being necessary for the performance conduct appears to me to be open to your cenof their duties." Bolland, B. concurred, and sure, who in many cases, have attained an age for the same reason. Now, we have only which an “idle,” classic knows the Greeks reto look into our case, and we shall at once see spected and the Romans reverenced, I shall how exactly applicable these remarks are to barely state, what, from my limited observation the trustees G, and H.; and I cannot doubt and experience, I deem deserving your con that upon this authority and that of other re-sideration and rebuke. It is briefly this-Whe

Selections from Correspondence.- Assignability of Government Pensions.

439

ther the whole of those official monotonies, administrators and assigns, will vest the estate which the routine of an office requires an em- at once in the devisee? or whether he will have bryo attorney should undergo, be not, as to take a conveyance of it from the executors? relative to the nature of their end, incon- I should have imagined that the case of Ripley sistent, not only with the educational views v. Waterworth, 7 Ves. jun. 425, had settled of a rational logic, but at variance with the this point, had I not heard a Barrister the other common-sense perceptions of an ordinary day assert, that in such a case the estate was understanding on the subject? Should this, in the executor, and not in the devisee. It sir, be, might we not by an examination into may perhaps be as well to add, that in the case the causes and origin of this existing evil, find to which I allude, the estate pur autre vie was room for re-modelling and reforming their included in the devise of the residue of the tendency and operation? On this point your testator's estate; but this cannot make any hints are respectfully solicited. I venture not difference. to offer mine,-not merely for the reason above A COUNTRY READER. advanced, but from my consciousness of the calmness and comprehensiveness required for its solution and developement,-a comprehensiveness I am excluded from possessing by the unscientific system which is offered to your reprehension. Were my propositions to be proved, such writers as Old Subscriber" would remain quiescent. His proposals were gratifying, inasmuch as they unveiled a prospect of acquirements gained under previous ar rests of one's attention becoming practically profitable; but I found a remote parallel to their impracticability near at hand in one of the authors to whom he alluded. The resemblance to which I refer is to be found in the fourth Theorem of Euclid's first book, where I ASSIGNABILITY OF GOVERNMENT need not remind you the impossibility of the hypothesis is reducible ud absurdum.

These are the comments a few leisure moments from more pleasant pursuits induced me to make, on what I see have been already termed the "conduct of confirmed wisdom, and the compositions of sensible suggestion." In passing I might tell your "A. W. O." correspondent that the rewards at the Pythian games, on the authority of Pausanias, were the leaves of fruit trees; green and dried parsley at the Nemean and Isthmian respectively, and therefore "laurel" at none but the Olympic.

I

In conclusion, Sir, allow me to regret, if have not expressed myself with that diffidence which should attend the too-often trivial reasonings of youth, or been wanting in that deference to the doctrinal mode now in use, that a more profound knowledge of the principles of the law might originate and cement. Trusting the agitation of so important a subject may not be suffered to subside,

AN IDLE ARTICLED CLERK.

[A note from our "Idle Correspondent" justly describes the contents of this letter as somewhat too vaguely worded, and the suggestions as too much generalised. It seems to be a paraphrase, something after the manner of Jeremy Bentham, on the old complaint against "the drudgery of an attorney's office." ED.]

ESTATE PUR AUTRE VIE.

TRIAL OF DEFENDED CAUSES IN TERM.
Mr. Editor,

The allowing any other than undefended causes to be set down in term, produces great inconveniences to the suitors, who are thereby deprived of the assistance of the Queen's Counsel, as these learned personages (al Banco to attend the Lord Chief Justice at though retained) will not quit the Sittings in Nisi Prius. The whole system requires rege

neration.

PENSIONS.

CIVIS.

THE important question involved in the case of Tunstall v. Boothby and others, reported p. 380, ante, has induced us to enquire more fully into the circumstances, and we are enabled to make the following additions to the former report, the facts of which we find are perfectly correct as far as they go. But as some matters of importance were omitted, the report of the case may have greater weight than what transpired in Court on the motion would justify; we think it right therefore to put our readers in possession of the following particulars.

First then, the notice of motion was for an injunction to restrain the defendant Sir W. Boothby from paying over to the defendants, Charles Asprey and John Chart, (assignees of an insolvent debtor) or either of them, or any person or persons by their or either of their order, or to their or either of their use, or to the defendant, W. R. Browne, (the insolvent debtor), or to his order for his use, any monies then being in his Sir W. Boothby's hands for answering the arrears due and payable of the compensation allowance of 5001., &c. ; and it concluded with "and that it be referred to the Master to appoint a fit and proper person to be the receiver of the said compensation allowance, and the arrears and growing payments thereof.”

Thus, the injunction asked for was to restrain Sir W. B. from paying over any monies then in his hands for arrears only; and the most imSir, portant part of the motion was, to obtain a Can you or any of your correspondents in-receiver of the compensation as it becomes form me whether a devise of an estate purdue, in order that the Court might takė posautre vie, limited to the testator, his executors, session of the fund.