« EelmineJätka »
CONVEYANCING PROGRESS AND ITS
ONE great hindrance to progress in conveyancingthe handiwork of a liberal profession-is the timidity or unwillingness of the heads of that branch to sanction any deviation from old forms. It is easier to frame a deed verbosely than concisely. The ranging two or more synonyms is more agreeable than the selection of one word comprising the exact idea intended to be expressed. The labour of the hand is less irksome than the working of the brain. At all events, the latter employment is in general confined to the frame and plan of the deed rather than the details. Unfettered as is conveyancing, with the necessity for any particular form, it contains within itself the elements most favourable to progress and scientific improvement. Nevertheless, it must be confessed that no branch of the profession has so little improved as the system of drafting deeds. What the professors of the art would not do, was sought to be done by the aid of the Legislature. Because conciseness, "against which there is no law," was not attempted by the conveyancer, brevity was suggested and offered by statutory forms:
The principle was good, and the result desired was one which the public, whose servants we are, was entitled to; yet the mode in which the end was to be attained was so clumsy and puerile, that the statute soon became a dead letter. In fact there was never any vitality in it. What the public wanted was a document which they could read and understand; and, as a necessary consequence of these qualities, to do so in a small compass and few words-what they got was, a form of words which were to mean, not what they said, but another formula specified in the act. This was a most bewildering process to the layman, and hardly less troublesome to the professional. A document which could only be understood by the aid of, and comparison with, another document was not likely to find much favour with any one. A letter in cypher is not the most easy thing to read; a statutory concise deed was less so. But was there any occasion for this? Is not the English tongue susceptible of expression, and clearness, and brevity? Surely a language which contains such a sentence as, "Let there be light, and there was light," is not wanting in strength or conciseness. We wonder how a conveyancer would express that sentence. Somewhere in our reading, we fancy a specimen of his mode of stating it was exhibited. Why have not our forms of deeds improved? We answer, because the old stagers will not allow it, and the young ones cannot afford to do it. Let a young conveyancer, just starting in his career, venture to prune his drafts of verbiage-we mean thoroughly
and scientifically-and he is lost. The solicitor of many years standing is amazed at it. He ventures to show it to some veteran in chambers, and he shrugs his shoulders, and the thing is done for. The novellist the innovator-the not-safe man, is discarded, and his drafts become few as well as short. Is not this the case? How many can vouch it in their own proper persons? Frame your draft with a limitation to the purchaser "and his heirs," and you will have to justify the omission of," and his assigns for ever." Leave out the nauseous repetition of "executors and administrators" as an addition to the principal's name, and see how much you lose in time and reputation by the omission. So with other excisions; and ultimately the conveyancer, earnestly desirous of improving the language of his drafts, is beaten down by the continued opposition and senseless doubts and sneers which are cast upon his labours. He rapidly degenerates, and is lost in the old ruts of verbiage.
Turning from these matters, which, if followed, would only lead to a series of notes and hints on "short forms," we will give an instance how an alteration in principle-justifiable for brevity and economy-was met by one of the most learned and deservedly respected of conveyancers. A man from whom we hoped better things.
Trustees of a settlement had dropped off by death: new trustees were to be appointed by the sole surviving trustee. The property was partly stock, and partly leaseholds. As to the stock, there was no difficulty in getting it into the names of old and new trustees. How it is effected we hardly know; but we fear the benighted people at the Bank of England (well may she be represented as "the Old Lady of Threadneedle-street") actually allow F., the stock owner, to transfer it into the names of F. (the same F.), G., and H. Now we know that this is most heterodox; for how can a man assign to himself. We know it cannot be done, and it is no use telling us lawyers that it is done. "This people who knoweth not the law are cursed."
Now, as to the leaseholds. How are they to be got out of the old trustee, and put into the old and new trustees jointly? Had they been freeholds, the job could have been done neatly and scientifically. F., the old trustee, could have conveyed the land to G. and his heirs, to the use of F., G., and H., and their heirs, and the object is effected in a simple and lawyer like way. There are other modes of doing it, but none so neat as the above. The statute of uses executes the use, and F., G., and H. are invested with the freehold and inheritance as surely as if originally appointed. No one, we believe, doubts this, except perhaps the settlor or the cestuis que trustent, who are utterly unable to comprehend it.
That is of no moment: we have already favoured them with an appropriate remark.
But, as to the leaseholds. How are they to be got out of F., and put into F., G., and H. One deed has sufficed as to the freeholds, although the property was almost a principality, and the estate the entire fee-simple. What is to be done with this house held for the unexpired term of 42 years at a rent of £1, and worth, to let, £20 per annum? Will not one deed suffice? "Should the trust estate consist of money in the funds, the stock may be transferred into the joint names of the old and intended new trustee" (Lewin on Trusts, 466). How this is effected, the learned author does not say. Probably he thought it was managed in some absurdly direct mode by the wise men of the East. However, as might be expected, no precedent is created westward; for he proceeds, "If the trust estate consist of chattels real, the parties cannot effectuate their object but at the trouble and expense of Two deeds." This is the mode. F., by one deed, assigns the house to X., upon trust that he do immediately assign it to F., G., and H.; and then X., by another deed, assigns it to F., G., and H. We admit this is the principle of the transfer, and no other is correct. But, why two deeds? Why will not one suffice for this wretched little term? Make the whole one deed. Let F assign to X. upon trust as above, and by another testatum let X. assign to F., G., and H. For authority justifying such a course, we will produce it in abundance. But first, what is the objection? It is two deeds, with distinct operations in one. Well, what of that? Do not fifty tenants in common convey by one deed, and has not the deed fifty distinct operations? But it has a consecutive double operation. Has not every revocation of old uses, and appointment of fresh uses, a similar operation, and yet these are found in one deed without doubt or scruple. Lord Coke says, "The law will adjudge priority of the operation of one and the same deed, although it be sealed and delivered at one and the same instant; and therefore it shall be first, in construction of law, a revocation and cessor of the ancient uses, and then a limitation in raising of the new" (Digge's case, 1 Rep. 174 b.). Lord St. Leonards, citing the above case, proceeds, "Nor is this the only case in which the law adjudges priority in distinct parts of one and the same deed. It is upon this principle that a lease and release by the same deed has been several times ruled to be a good conveyance; for priority shall be supposed" (Powers, 210, 5th edit.). To these authorities may be added the conveyance of land to a purchaser, and the grant of a rent charge thereon by one and the same conveyance. The double consecutive operation is unquestionable. Then in another case the principle was clearly established.
F. and G. conveyed to S., excepting and reserving to F., G., and M, a liberty of hunting. The Court of Queen's Bench decided, that although this was not effectual as a reservation properly so called, yet it might be upheld as a new grant by S. (who had executed the deed), and executed in favour of M., although no party (2 Ad. and El. 705).
Upon authority the case seems clear. Now let us turn to practice. A young conveyancer settled a transfer of leasehold from an old trustee to old and new trustees by one deed. It contained two testatums; and, in fact, cutting off the head and tail piece of the deed number two, it was bodily appended to deed number one.
The draft was doubted and laid before one of our first conveyancers-we think no greater or more talented could be named—and here is his opinion: "I have perused this draft, and although I am disposed to agree with Mr. , that on principle
the operations of the assignment and re-assignment would be consecutive in the order requisite to effectuate the intention, yet I think that in the actual state of the authorities and practice, this mode of framing the instrument is too experimental, and not wise economy. It will be better, I think, to pursue the ordinary course of assigning and re-assigning by separate deeds."
What pretensions has conveyancing to the dignity of a science after a high priest delivers such an opinion. The principle of the draft is admitted to be sound, yet it is condemned as too experimental," and the other objection is the "actual state of the authorities," of which, however, not one is suggested, nor is it believed could one be found in any way overruling the authorities quoted, and which the learned gentleman was referred to. Will the conveyancer who originally framed the draft continue his attempts to improve conveyancing? We trow not. In a few years he will shrug and doubt and talk of experiments, and unwise economy, and safer courses, and state of authorities, as if he were a very oracle. There is, however, this advantage, that for those who desire to accomplish the conveyancing feat of getting leaseholds vested in old and new trustees in an economical way, there is the authority of the above references, and, we may add, of the above opinion also; for if the gentleman who delivered it could not suggest a doubt upon it, we do not believe that any objection exists.
As to the stamps, we think it reasonably clear that one stamp-35s.-is alone necessary on the deed, notwithstanding its double operation. The transaction is a single one, though the modus operandi may be duplex. That seems the test and not the number of parties or their dealing. For instance, tenants in common convey by one stamp, though the deed is
DAVIS'S COUNTY COURTS.The New Practice of the County Courts in Actions and other Proceedings, with the Statute 19 & 20 Vic. c. 108, and the Rules thereon: being a Supplement to the 2nd Edition of the Manual of the Practice and Evidence in the County Courts. By JAMES EDWARD DAVIS, Esq., Barrister-at-Law. London: Butterworths.
The above explains in some degree the nature of the work. of which it is the title-page, and relieves us from the necessity of pointing out the object of the author. Though, however, a supplement to another work, it is so arranged as to be complete in itself, and offers a complete manual of the existing county court practice. By means of this work the reader will readily comprehend the effect of the recent alterations in the county court practice; and as it has the new act, and the rules issued in pursuance thereof, including the forms in extenso, it is almost indispensable to the practitioner. But, of course, the most valuable part of the volume is that containing the treatise, in which Mr. Davis has arranged and methodised the various provisions of the act and rules, under the following primary heads: -Chapter I. Jurisdiction; Chapter II. Commencement of Proceedings; Chapter III. Summons and Service; Chapter IV. The Defendant's Proceedings; Chapter V. Removal of Plaints and Objections to Jurisdiction; Chapter VI. Proceedings between the Summons and Trial; Chapter VII. The Trial and Judgment; Chapter VIII. Proceedings between Judgment and Execution; Chapter IX. Execution; Chapter X. Replevins; Chapter XI. Possession of Tenements; Chapter XII. Interpleader; Chapter XIII. Costs of Attorney and Counsel; Chapter XIV. Insolvency, Protection Cases, and Absconding Debtors; Chapter XV. Charitable Jurisdiction; Chapter XVI. Equitable Jurisdiction; Chapter XVII. Jurisdiction under certain Statutes-i. e., Succession Duties, Customs, and Arresting Ships; Chapter XVIII. Metropolitan Building Act, 1845; Chapter XIX. Judges and Officers of the Courts; Appendix, containing Act, New Rules, Forms, Scale of Costs, and Schedule of Fees, &c. A very complete Index finishes the work, which comprises upwards of 400 pages.
We noticed the original work of Mr. Davis,
and we can now say that the supplement to it is executed in a similarly meritorious manner, and that in our opinion it is the most useful work yet published on the county courts. We should, however, observe that the parts relating to the equitable and statutory jurisdiction of the county courts are too slight to be of much utility. An extract from the work will, however, best show the manner in which Mr. Davis has executed his task. The 2nd part of Chapter II. treats of the "Commencement of the suit and entry of the plaint," and the following is taken from this part:
'Preliminary proceedings before entry of the plaint. -Having ascertained the court in which the plaint should be entered, the plaintiff is in general in a condition to commence the action by giving the necessary instructions to the registrar.
"Obtaining leave to issue summons.-As already mentioned, however, a plaintiff may have to obtain leave to issue the summons.
"Obtaining consent.-If the defendant has consented to give the court jurisdiction to try the matter in dispute, a memorandum of agreement must be signed.
"Notice of action.-If the action be one in which notice of action is required (as in the case of actions against justices for acts done in the execution of their office), such notice must be given.
"Actions by infants.-Where an infant applies to enter a plaint for any cause of action (other than for wages or piece-work, or for work as a servant), he must' procure the attendance of a next friend, at the office of the registrar, at the time of entering the plaint; and no plaint can be entered until the next friend has undertaken, in the form set forth in the schedule, to be responsible for costs, who on entering into such undertaking is liable in the same manner and to the same extent as if he were a plaintiff in an ordinary suit; and the cause proceeds in the name of the infant by such next friend, and the undertaking is filed by the registrar; but no order of the court is necessary for the appointment of such next friend. If the plaintiff fail in, or discontinue his suit, and do not pay the amount of costs awarded by the court to be paid by him to the defendant, proceedings may be taken for the recovery of such amount from the next friend as for the recovery of any debt ordered to be paid by the court.
The cases of actions for wages, piece-work and work as a servant, are excepted, because the statute 9 & 10 Vic. c. 95, s. 64 (as extended by the statute 13 & 14 Vic. c. 61), expressly enacts, that it shall be lawful for any person under the age of twenty-one years, to prosecute any suit in any county court, for any sum of money not greater than fifty pounds, which may be due to him for wages or piece-work,
or for work as a servant, in the same manner as if he were of full age. No alteration in this respect was made by the new act.
"In other cases the preliminary step is a condition precedent to the right of action.
"Letter before action. Further, in actions where the debt or damage claimed exceeds £20, the plaintiff's attorney ought in general to write a letter to the defendant before commencing the action, as by the new "scale of costs and charges to be paid to counsel and attorneys in the county courts," a letter before suit is allowed for.
"Names of the parties, and description and residence of the defendant in general.-Assuming that no such prior step is required, or if required that it has been accomplished, the proceedings commence by the entry of a plaint, which the registrar of the court records in a book kept specially for that purpose. The plaintiff, in order to enter his plaint states vivâ voce, or in writing, to the clerk, his own name, addition, and residence; and the name, addition, and residence of the defendant, or such other description as will serve to identify him. He then states concisely the cause of complaint.
"When the name of the defendant is unknown.— Where the plaintiff is unacquainted with the defendant's christian name, the defendant may be described by his surname, or by his surname and the initial of his christian name, or by such name as he is generally known by, and the defendant may be so described in the summons; and in the event of the plaintiff or defendant not appearing, proceedings at the trial, whether the parties appear or not, may be taken as if the true christian name and surname had been stated in the summons, and all subsequent proceedings thereon may be taken in conformity with such description, but without prejudice to any amendment made at any future time by direction of the judge.
"The rule on this subject is nearly in the same terms as the former rule.
"Nature of the summons to be issued.-When the action is for a debt or liquidated money demand exceeding twenty pounds, the plaintiff must instruct the registrar as to whether the summons is to be issued with a view to obtain judgment by default; or if the action be on a bill of exchange or promissory note, whether the summons is to be issued under 'The Summary Procedure on Bills of Exchange Act, 1855.' So a plaintiff suing an executor or administrator must instruct the registrar, if he wishes the summons to charge that the defendant has had assets and has wasted them, with a view to obtaining judgment de bonis propriis.
"Several defendants.-Where a plaintiff has any demand recoverable against two or more persons
jointly answerable he has the option of proceeding against one or against both, or, if more than two, against all or any portion of the number; and in that case it seems to be immaterial whether the names of the persons he does not proceed against are inserted in the summons. The more correct course, however, where he or they are not sued, appears to be to omit him or them altogether. Any injustice that might be the result of selecting only one out of two or more who are equally liable, is remedied by the provision, that the selected defendant against whom judgment is obtained may, on satisfying such judgments, demand and recover in the county court contribution from any other person jointly liable with him.
"When the plaintiff proceeds against two or more defendants, the registrar should be instructed to enter the plaint against both or all, and the summons should be against all the parties sued. Where all the defendants are not resident in one and the same district, the proper course to adopt is to apply to the court for leave to issue concurrent summonses into different districts, by which all the defendants will be summoned to appear at the same court and at the same time.
"Particulars of demand.-On entering the plaint, the plaintiff must, in all cases, where the sum sought to be recovered exceeds 40s., deliver at the office of the registrar as many copies of a statement of the particulars of his demand or cause of action as there are defendants, and an additional copy to be filed. This rule is so far identical with the former rule on the same subject, but the new rule further directs that where the demand exceeds £50, but the plaintiff desires to abandon the excess or to admit a set-off, and sues for the residue, the abandonment or the admission of the set-off must be entered on the particulars before service; and in all cases the particulars are deemed part of the summons.
"Particulars in actions for breaches of covenant.— In actions for penalties to secure the performance of covenants, within the meaning of the 8 & 9 Will. 3, c. 11, the plaintiff must deliver particulars of the breaches on which he relies, in the same manner as required by the rule just mentioned, which, when delivered, are deemed part of the summons.
"It is to be observed that if the amount claimed in any case include a fraction of a penny, such fraction is not entered in the books of the court, and judgment cannot be given for such fraction."
EXAMINATION QUESTIONS. (Trinity Term, 1857.)
I. Where, and with whom, did you serve your
clerkship? II. State the particular branch or branches of the law to which you have principally applied yourself during your clerkship. III. Mention some of the principal law books which you have read and studied. IV. Have you attended any, and what, law lectures?
I. State the distinction between actions of contract and of tort; and between simple contract and specialty debts. II. What is the proper mode of suing on a bill of exchange or promissory note, with respect to indorsing the writ of summons, the time for signing judgment for want of appearance, and obtaining leave to appear and defend? III. Which of the parties to a bill of exchange is primarily liable to pay it; and how is this liability affected by the bill being accepted for accommodation? IV. What is the difference between libel and slander? V. By whom are replevins now granted; and in what court may an action of replevin be commenced? VI. Where an action is brought in a superior court to recover a less sum than £20, due upon a contract, what course must be taken to enable the plaintiff, if he succeeds, to recover his costs; and on what scale will such costs be taxed? VII. In what manner may judgment be signed for non-appearance to a writ specially indorsed; and where one or two defendants upon whom such a writ has been served appears, and the other does not, how may the plaintiff proceed? VIII. In what cases is a master responsible in damages for a tortious injury done by his servant; and how may his liability be altered by the fact of the injured party being also his servant ? IX. What step is it necessary for an attorney to take before he can bring an action for his bill of costs? X. What notice to quit is generally required in order to determine a yearly tenancy, and to what period of the year must it refer? XI. At what time after verdict may a successful party sign judgment and issue execution? XII. In what cases, and under what circumstances, may a party appeal from the decision of a superior court upon a motion for a new trial, or to enter a verdict pursuant to leave reserved; and what notice of appeal must be given, and to whom? XIII. In what manner may a judgment obtained against a registered joint-stock company be enforced against a shareholder? XIV. With what exceptions may the parties or their wives be examined as witnesses in their own causes? XV. Is it necessary to call an attesting witness to prove any, and what, species of written instrument?
I. By what means are the respective species of property usually conveyed or transferred? II. If
land be conveyed, and no mention be made of the buildings thereon, nor of mines or minerals thereunder, would such buildings, mines, and minerals pass by the conveyance? What is the rule in such cases? III. Suppose a pool or piece of water be granted, what passes to the grantee? IV. Under what authority may an estate tail be now barred, by whom, and in what manner? V. What are emblements, and when is a lessee of a tenant for life entitled to emblements, and when not? VI. What is the difference between a jointure and a dower, and how does each arise? VII. A. holds a lease for several lives, and he makes underleases; upon the death of one of the lives, he wishes to surrender the existing lease, and to have a new lease for the existing lives, with the addition of one in the place of the deceased. Would it be necessary that the underlessees concur in that surrender, or not? VIII. A testator appoints C. and D. executors of his will; C. renounces, and D. proves the will alone, and has probate; D. dies in the lifetime of C.; how stands the representation to the testator, and how is an assignment to be obtained from a legal representative? IX. The mortgagee in fee dies without devising the security, the mortgagor is desirous to pay the money; the heir-at-law of the mortgagee is unwilling or incapable to reconvey; to whom may the mortgagor pay the money, and of whom obtain the reconveyance? X. As to the registering of deeds affecting property in registered counties, what may be the consequence from delaying to register such deeds? XI. Title-deeds abstracted, are not in the vendor's possession, but in the hands of other persons, how are such deeds to be examined, and at whose expense? XII. What is the distinction between estates in remainder, and estates in reversion? XIII. Two persons, A. and B. (not partners), are to give bond to C. for the payment of a certain sum of money; what should be the obligation so that if B. die and leave A. surviving, C. may have a claim upon B.'s estate? XIV. Suppose A. and B. are partners, and give their joint bond to C., and A. or B. die, what remedy would C. have against the survivor, and the estate of the deceased? XV. Suppose one of the joint and several obligors to be mérely a guarantee for the other, what should such guarantee require from the co-obligor for his security?
I. Mention some of the ordinary cases in which the Court of Chancery exercises jurisdiction as distinguished from the courts of law. II. When a mortgagee enters into possession of the mortgaged estate, what is the proper proceeding to be taken by the mortgagor desirous of redeeming the mortgage; and