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Legal Education in Ireland. - Regulations of Divorce Committee. - Student's Corner. 455 the deputation, but suggested the propriety of and to be open to the inspection of every having the opinion of the Chancellor and law member of the committee; and the commitee officers in Ireland upon the subject before clerk is to give four days' notice of every pledging himself to any course.
ineeting of the commit.eu to the several menWe have watched with particular interest bers thereof. the progress of this highly creditable institu. 2d. That the agent be required to prove sertion fro:n its origin. The plans and course of vice upon the party from whom the petitioner instruction arlopted in the school ive have care- seeks to be divorced, of a copy of the bill and fully investigatell, and the pirtienlars of which of the order of commitment, and order for the were given in a foriner number. We are attendance of parties, witnesses, counsel and aware that the system has met with the strong- agents ; also to produce examined copies of est approbation froin many of the law profes. the judgment in the action at law, and of the sors in London, and we conceive the entire judgment in the action in the Ecclesiastical course reflects credit on those who have regu-Court, except in those cases from India, in lated the system of stndy in its respective which evidence of the judgments in an action departinents, evincing, as it does, intimare ac. of trespass and in the suit for a divorce is inquaintance with the plans fuilowed in the cluded in the proceedings transmitted from tiiree institutions in London, where the study thence,in pursuance of the act 1 Geo. 4, c. 101, of the law is cultivated.
“ To enable the Examination of Witnesses to The question for the government to consider be taken in Inolin in support of Bills of Divorce is not whether a good law school in Ireland on Account of Adultery committed in India." would be useful, for that has been well estalı. 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 Institate. 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 ihe 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 preperseverar.ce on the part of the founders, the vious 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 systein,. 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 le 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 re
quired to attend also to answer any questions REGULATIONS OF THE DIVORCE the select committee may think fit to require COMMITTEE.
that he should answer.
J. W. Freshfield, Chairman.
16 March, 1810. We bave alrearly stated that divorce bills, in their passage through the House of Cominons, are now referred to a select committee of nine members instead of a committee of the whole
THE STUDENT'S CORNER. house, (see ante, p. 290). The Select Committee have made the following regulations :
Ist. That two days before the sitting of the Sir, comunittee on any divorce bil), 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 leive to make the following remarks. The the bill to each member of the select commil-case is this. “ A. conveys to B. for valuable tee, in cases in which the evidence has been consideration; the draft is hy mistake drawn printed for the use of the Peers ; but where the to and to the use of C., in trust for B. the purevidence shall not have been printed, then a chaser. After which follows an assignment of manuscript copy is to be furnished within the an outstanding term from D. to C., in order same period to the chairman only; but in all to merge. The engrosment is subsequently rases the evidence communicated by the House altered, and the conveyance executed: to c. of Lords is to remain with the committee clerk to the use of B. But the assignment of the from the time of the commitment of the bill, term remains,' The question is, whether C.
MERGER OF TERM.
has a sufficient estate to merge the term, 80 question do vest in him, is certain : else how that the whole may pass under the limitation could they be drawn out of him? And if the of use to B.” Now in order to gain a clear inomentary residence of the seisin in the feof. conception of the matter in dispute, it is my fee or releasee is sufficient (as must be adunitopinicn reference must be made to the opera- ted by all who do not subscribe to the doctrine tion of the gift prior to the Statute of Uses, a of Scintilla juris et titule, with all its metaphy. source from whence many of the most intricate sical subtleties and refinements) to impress is and perplexing questions arising out of the with all the uses and confidences, either future, statute have been repeatedly unravelled and springing, or contingent, which it might afterexplained.
wards have to supply ulterior to its execution Before the statute the limitations would in the party in esse to receive it, is there any stand in the order they now do, by the altera- plausible reason for doubting the sufficiency tion in the engrossment, (the assignment re- of that temporary locality to subject the estales maining as above); viz. from A. to C. to the in himn (the feoffee or releasee) to the operation use of B.; here clearly, before the statute, C. and consequence of a merger, and thus furnish is legal owner or feoffee, and B. the equitable an answer as well to the 3rd as to the 5th of owner or cestui que use ; C. by the conveyance the above queries, which is solely dependent becomes seised of the legal fee, and by the upon the 3rd, the 4th being self-evident. If assigoupent, possessed of the legal terın, which these premises be correct, it is clear that the union of the two estates in biin induces and term in the case before us passes as a part, an compels a merger. As the tendency, and in undivided and indefinite part, of the whole fact essence, of a merger (as the name imports) | because swallowed up and extinguished in the is the drowning and complete extinction of the whole under the limitation to B. And the relesser in the greater or subsequent estate, it servation in the statute mentioned by your corfollows as a consequence, both upon reason respondent as to termors for years can have and principle, that to the interest of B., the no bearing on the matter here, that admitting cestui que use, the separate existence of the two and contemplating the lerm as a distinct disestates is unknown, and as though they had jointed estate, and not incorporated into annever existed, And it could not in strict pro- other by the operation of what inay be called priety or technical accuracy be said, that B. a species of legal attraction under che techni. was entitled to the equity of the term, and the cal name
merger.” equity or use of the fee, as distinct and se
X. X.X. parate, but rather that he was entitled to the equity of the whole as consolidated by the Sir, union in B. And moreover, the estate, both In endeavouring to reply to the question put legal and equitable, would pass in any subse by your correspondent, " An Articled Clerk," quent devolution or alienation, undivided and (p. 315, ante), whether, under the circumentire, the combination being so complete and stances of the case stated, c. has a sufficient forcible in the contemplation of law and equity estate to merge the term, so that the whole as to require the same means and power to may pass under the limitation of use to B.; dissever as were used to create it.
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 contidence 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. 31:9), “ 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 estale 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 term or particular estate is the instrument not he still take an estate in fee? Do not the mediately or immediutely for raising the uses, estates in question vest and unite in him now so that the uses are to arise out of the estate as before the statute? Does not the legal at conveyed to hiin. tribute of merger attach on them now as be- I would next remark, that the case of Chefore? Is not the only difference that their ney, reported 4 Leon. Moor. 106, pl. 345, time of abode in him is interrupted and con- which was the first decided after the statute tracted? And are they not transferred from passed relative to this provision of it, of which him by the operation of the statute in their we have any report, lends its aid in support of incorporated and whole condition? That be the above view of the question. As to the class does take a legal estate, and that the estates in of cases to which allusion made by your
The Student's Corner. - Selections from Correspondence.
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 to an expression of the object and intent as these I may cite that of Sir John Ferrers und strong as existed in this case; bound as these others v. Sir Richard Fermor and others, Cro. courts always consider themselves to be, to give Jac. 643, and also Fountain v. Cook, I Mod. 107, full weight to what is actually expressed by par. which latter was a case of the lessee of a term ties to a deed, as being best calculated to exfor years being made tenant to the precipe for plain their meaning: I am compelled to come suffering a common recovery; and whilst speak to the conclusion that C. took "under the coning of the effect of the mere conveyance in the veyance, an estate sufficient for the purpose of case put to C., as releasee to uses or “ conduit erging the term ;" that the term in fact, was pipe," I may cite the language of Lord C. J. a merger at law, and “the whole must pass Tindal in his judgınent in the case of James v. under the limitation of the use to B.”
For Plant, 4 Ad. & Ell. 749, first premising that it is clear the exceptions in favour of those the point to be decided there was—whether who bave an instantaneous or temporary seisin a unity of seisin of a piece of land, and of a are allowed on equitable gounds ; and Mr. way over that land, in one and the same person, Preston, from whose work I have already extinguishes or suspends the right of way? It quoted, states in his 12th chapter, p. 273, exso happened that, in this case, two estates had plicitly, that the exemplion which arises in been conveyed with a view to a partition by those cases which (independently of the saving coparceners, to one and the same trustee; but, in the statute which we have been discussing) as to the estate over which the right of way are within the exception of the law on the merran, the conveyance made to him was as ger of estates, does not apply between trustees a "mere releasee to uses ouly." In this res- and cestui que trusts, and that though both espect therefore the trustee there stood in pre- tates may be held by the same person on the cisely the situation as C. does in our present sume trusts, the doctrine of merger will opecase, and on this the learned C. J. observes : rate on these estates. For" as to legal estates “With respect to such releasee, it is a known (he contiunes) the exception to the application doctrine, that since the statule, he takes no in- of this doctrine, extends to those instances terest whatsoever in the lund: that, on this ac-only in wbich one person has the legal ownercount, it can neitherescheat nor beforfeited, nor ship of several estates in different rights, viz. is it subject to dower or curtesy, on account of one in his own right and the other in another his momentary seisin, and we know of no au- right, and in which the law, as distinguished from thority, and without it there is no reason, for equity, takes notice of these different rights.” holding that such momentary seisin of the land "Over the beneficial ownership under the shall operate to extinguish a right of way by trust, Courts of Equity alone have jurisdiction.” unity of seisin.” I need scarcely remark Supposing therefore the merger to be complete how much your correspondent's argument" by at law, the relief in the case put, must lie in analogy &c.” as he has termed it, is corrobo- equity; but this is a question into which I can. rated by this. In perfect accordance with the not enter fully here, and will only further view we are now taking of this provision of the observe, that if the definition Mr. Preston in statute, are the remarks of another learned one part of his work gives of merger be author on Real Property Law, Sir Edward strictly correct, viz. that it is the conclusion of Sugden, who, in bis last valuable edition of law from the supposed intention that two estates Gilbert's Uses and Trusts, says in a note to p. should not exist distinctly,” it is perlaps 133, (3d. Edit.) “ The statute has a provision scarcely to be expected that equity will interwhich saves to feoffees &c. to uses, all such pose under circumstances like the present, former rights as they might have had to their when we are not left to conjecture or to suporon proper use: therefore if a termor for pose the intention alluded to, but have a deyears be made a feoffee to uses, his term is cided expression of the intention that two essaved by the statute and not merged, and it is cates shall merge and not exist distinctly: not material that the termor holds the lease in
Τ. Η. trust; the same rule must, it is conceived, prevail even where the conveyance is by lease and release. After what has been above stated, I could
SELECTIONS have had no hesitation in acquiescing in your FROM CORRESPONDENCE. 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
To the Editor of the Legal Observer. your correspondent, was assigned to this re
Sir, leasee 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
POWER COUPLED WITH INTEREST.
Sclections from Correspondence.
no doubt that the devise to G. and M., as it ported cases which inight be adduced to the stands originally, conferred on them the legal like effect, the legal estate in the real property fee, as there are suficient words of limitation, of our testator was vested in H. (the substituted “and to their heirs and assigns for ever.” The trustee) jointly witli bis 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 terins : "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 thiok we may assert, after what tive as a revocation of the appointment of has been observed above, that in a court of law M. as trustee? And “If the second codicil G. would be considered as enabled to make a was inoperative for want of being properly good title to the legal estate in the premises executed, was it not set up by the words of sold ; and as little doubt can there be, that, confirmation in the third codicil ?” I might under the trust for sale, and with the consent refer to the case of Moneypenny v. Bristow, of the testator's daughter S. G., evidenced loy 2 Russ. & Myl. 117, and the cases cited in it, her concurrence in the conveyance, be can as to the general rule that a codicil duly attested make a complete title to the equitable estate amounts to a republication of a will; but I therein. The only possible question which, ia think the cases of Utterton v. Robins, 1 Adol. my mind, could be raised is this: How far the & EI). 423, and Gordon v. Lord Reay, 5 Sin. testator's not having (when in the second codie 274, are both so much in point that I inay cite cil of 1816 he directs G. and H., with the conthein as answering the last above-mentioned sent of his daughter, to sell all his real estate (or fourth) query in the aflirmative, and there. &c.) repeated the direction which he added to fore the fact to which the second query points the similar trust for sale created by his will; is of no further moment.
viz. “that the receipts of his said trustees and Having thus established that H. is by the of the survivor of them, and of the heirs &c. of effect of the second codicil duly appointed a such survivor shall be good discharges to the trustee in M.'s stead, we come to the third purchasers,” &c., is inaterial as far as regards query, whether such appointment was “an of the full and complete discharge of the purfectual substitution of H. in the place of M., chaser for his purchase-money. But I confess, considering such substitution was not accom- that as to this, I feel satisfied, looking at all panied with an express devise to ?" In the instruments together, a Court, taking into other words, did the legal estate in fee in the consideration, as they always do, the apparent property devised by the will which we have intention of the testator, (fully expressed inabove considered the terms of the devise clearly deed in his will, though not in the second coconferred on M., jointly with G., vest in H. dicil) would certainly hold that, on the whole, without any device? And this I think I may the power to give effectual receipts still rem venture to answer also in the afirmative, under inained to the surviving trustee who sold. the authority of the case of Anthony v. Rees,
T. H. 2 Cro. & Jervis 75. In that case it is observa. ble, there was no actual devise of the estate
EDUCATION OF ARTICLED CLERKE. any more than in the case now in question, the trustees being in fact appointed only as “trus.
Sir, tees to look that justice should be duly ad- Having ever had the reputation of an incorministered between the said parties." "The rigible idler, it should seein highly presuming trustees in that case had only to pay 101. yearly in mne to trouble you with any remarks on the and every year out of a freehold to the wife of conduct or compositions of confirmed "wis. the 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 con on still more satisfactions you inpart for the government and guidtory grounds; for, after observing "Whenance 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 iny limited observation the trustees G, and H.; and I cannot doubt and experience, I deern deserving your coa that upon this authority and that of other re-sideration and rebuke. It is briefly this-WheSelections from Correspondence.- Assignability of Government Pensions.
ther the whole of those official monolonies, adıninistrators and assigtis, 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 linagined that the case of Ripley sistent, not only with the educational views v. Waterworth, 7 Ves. jun. 425, had seitled of a rational logie, but at variance with the this point, had I not heard a Barrister the other common-sense perceptions of an ordinary day asseri, 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 ly an examination into may perhaps be as well to add that in the case the causes and origin of this existing evil, find to whiek I allode, the estate pur autre rie vas room for re-modelling and reforining 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 respecifully solicited. I venture not difference. to offer mine, -not merely for the reason abore
A COUNTRY READER. advanced, but from my consciousness of the calmness and comprehensiveness required for ils solution and developement,-a comprehen
TRIAL OF DEFENDEV CAUSES IN TERM. siveness I am excluded from possessing by the Mr. Editor, unscientific system which is offered to your re
The allowing any other than undefended prehension. Were my propositions to be proved, such writers as “Old Subscriber”
causes to be set down in term, produces great would remain quiescent. His proposals were deprived of the assistance of the Queen's
inconveniences to the suitors, who are thereby gratifying, inasmuch as they unveiled a pros- Counsel, as these learned personages (alpect of acquirements gained under previous ar. rests of one's attention becoming practically Banco to attend the Lord Chief Justice at
though retained) will not quit the Sittings in profitable ; but I found a remote parallel to Nisi Prius. The whole system requires regéiheir impracticability near at hand in one of
Civis, 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.
PENSIONS. These are the comments a few leisure mo. ments from more pleasant pursuits induced me The important question involved in the case to make, on what I see have been alreally of Tunstall v. Boothby and others, reported p. termed the “conduct of confirmed wisdom, 380, ante, has induced us to enquire inore fully and the compositions of sensible suggestion.” into the circumstances, and we are enabled to In passing I might tell your “A. W. 0.” cor- make the following additions to the foriner respondent that the rewards at the Pythian report, the facts of which we find are perfectly gaines, on the authority of Pausanias, were the correct as far as they go. But as soire matleaves of fruit trees; green and dried parsley ters of importance were omitted, the report at the Nemuan and Isthmian respectively, and of the case may have greater weight than therefore “laurel” at pone but the Olympic. what transpired' in Court on the motion
In conclusion, Sir, allow me to regret, if I would justify; we think it right therefore have not expressed myself with that diffidence to put our readers in possession of the follow. which should attend ihe too-often trivial rea. ing particulars. sonings of youth, or been wanting in that de- First then, the notice of motion was for an ference to the doctrinal mode now in use, that injunction to restrain the defendant Sir W. a more profound knowledge of the principles Boothby from paying over to the defendants, of the law might originate and cement. Trust- Charles Asprey and John Chart, (assignees of ing the agitation of so important a subject may an insolvent debtor) or either of them, or any not be suffered to subside,
person or persons by their or either of their AN IDLE ARTICLED CLERK.
order, or to their or either of their use, or to
the defendant, W. R. Browne, (the insolvent [A notefrom our "Idle Correspondent” justly debtor), or to his order for his use, any monies describes the contents of this letter as somewhat then being in his Sir W. Boothby's hands for too vaguely worded, and the suggestions as too answering the arrears due and payable of the
compensation allowance of 5001., &c.; and it much generalised. It seems to be a paraphrase, concluded with “and that it be referred to the something after the manner of Jeremy Ben- Master to appoint a fit and proper person to be tham, on the old complaint against the drud- the receiver of the said compensation allorounce,
and the arrears and growing payments thereof." gery of an attorney's office.” Ep.
Thus, the injunction asked for was to restrain
Sir W. B. from paying over any monies then ESTATE PUR AUTRE VIE.
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 pur due, in order that the Court might také pose eutre vie, limited to the testator, his executors, scssion of the fund.