ANSWERS TO MOOT POINTS CORRESPONDENTS ON MOOT POINTS CONVEYANCING PRECEDENTS... 19-34 34-35 ... 35-36 ... KAIN & COBBETT, LAW AND GENERAL ACCOUNTANTS, 16, GRESHAM STREET, CITY, E.C. iv £2 15s. 8 PP., including paper, &c. (per 50 copies) From which a discount of TWENTY PER CENT. is deducted for payment within a month. A larger or smaller number of pages at a proportionate price T. DAY begs to call attention both to the Prices and Style in this Department of his Business, and to announce that he possesses every facility for executing the largest as well as the smallest Orders. Estimates on the most liberal scale furnished to Authors desirous of bringing their works before the public. LITHOGRAPHIC PRINTING. Address Headings to Note or Letter Paper, 3s. 6d. per ream. If Four Reams are ordered, no charge is made for Engraving. COPPER-PLATE PRINTING. Name-plate Engraved and 100 Cards, 48. Bill-heads and Door Plates made and Engraved. In 8vo, price 48. 68., sewed, TENURES with Notes, and Copious Questions on the Text and Notes. New Edition. The mode in which this work has been edited is, in the first place, by omitting the portions quite obsolete; in the next place, by slightly altering LITTLETON'S Text, where some partial change has been made in the law since Littleton's time; and, in the third place, by adding notes to very many of the sections, noticing the changes made by statutes, and in some cases stating recent decisions of importance, and, in the last place, by furnishing a most complete series of questions on the texts and notes. London: T. F. A. DAY, 13. Carey-street, Lincoln's-inn. Price 1s. 8d. Now Ready, price 25s, vols. cloth, The Fourth Edition of the KEY TO THE EY TO THE EXAMINATION QUESTIONS: Embracing the Questions put at the Examination of Articled Clerks from the Earliest Period to the Present Time: Together with Full Answers thereto, and copious References to Cases and Authorities. In addition to giving the Articled Clerk the best idea of the Examination he will have to pass through, this Work forms a most comprehensive elementary treatise on the various branches of the law in consequence of the fulness and completeness with which the Answers have been given. N EXPOSITION OF THE LAND TAX: Its Assessment and Collection; showing the subjects exempt from the Tax; mode of granting relief from the Double Land Tax assessed on the Estates of Roman Catholics; and Rights and Advantages conferred by the Redemption Acts, with References to the reported Cases in the Courts of Law and Equity, bearing on the subject; and an Introductory Sketch of the History of the Land Tax. By MARK A. BOURDIN, of the Inland Revenue Office, Somerset House.-Price Half-a-Crown, or sent free for thirty-six stamps. THE LAND TAX-Containing an Analysis of the several Acts now in force for the Redemption of the Land Tax: and of the powers given by those Acts for the Sale and Mortgage of Lands for the purpose of Redemption. To which are appended Tables for calculating the Terms of Redemption of Money and Stock.-Price 1s 6d., or post free for 2s. London: T. F. A. DAY, 13, Carey-street, Lincoln's-inn. In one thick volume, containing upwards of 1,000 pages, price 75. THE cloth, HE CHESS PLAYER; Edited by KLING and HORWITZ. This Work forms a complete Encyclopædia of the Game, containing Elementary Lessons for Beginners-a variety of Games by the best Players, with copious Notes-Chess Problems and Studies by the most eminent Masters, with Solutions-A Series of Papers on the History and Literature of Chess, from the earliest period to the present time-together with numerous other matters of importance to Amateurs. London: T. F. A. DAY, 13, Carey-street, Lincoln's-inn. OLLOWAY'S PILLS, famed for the cure of The Liver complaints and derangement of the Stomach. Liver being justly esteemed the noblest part of the body and fountain of life, thus it is when the springs become poisoned, life itself is threatened and the suffering patient is in the most imminent danger; but thousands have borne willing testimony to the power of this potent remedy, cleansing the blood from all impurities-strengthening the Stomach, discharging the bile-removing all obstructions, and eradicating disease without leaving a trace behind. Sold by all Medicine Vendors throughout the World; at Professor Holloway's Establishments, 244, Strand, London, and 83, Maidenlane, New York; by A. Stampa, Constantinople; A Guidicy, Smyrna; and E. Muir, Malta CONVEYANCING PRECEDENTS. (vol. 3, pp. 135, 383). To the Editor of the "LAW CHRONICLE." SIR,-I venture to trouble you with a few observations on the above subject in answer to the communication from "H. S. Y." which appeared in your last number. I beg leave to differ from his opinion as to the remoteness and consequent validity of the limitation referred to, and in so doing I think I can show that the limitation referred to does not infringe the rules laid down by 40 Geo. 3, c. 98, as to perpetuities. At page 539 of Fearne on Contingent Remainders, and executory devises, 9 Ed., the effect of the statute is stated to be that no person can create a trust for accumulation to continue for any further period than -1. During his own life; 2. For 21 years from his own death; 3. During the minority of any person living at his death, or then in ventre sa mere; 4. During the minority of any person who, for the time being, would be entitled to the rents, &c., if of age. Now, it appears to me that although in the case referred to there may be a postponement of the vesting of the estate for 41 years after death of Frances, yet that does not at all affect the validity of the limitation; for it is a matter of course that, if at the expiration of 21 years from the death of tenant for life, the person who, if of age, would be entitled to the rents, &c., be an infant, the accumulation must continue till he become adult, which may be nearly 21 years more, or in the whole 41 years from the death of tenant for life. And this appears to be within the rules before laid down; for the first limitation is assumed to be to Frances for life, the second to such of her children as should attain 21 (and which may be 21 years after her death, and which is identical with the limitation contained in the third rule before mentioned), and the third limitation is to such child or children of any son of Frances who might die under the age of 21 years, as should live to attain 21, &c. (and which corresponds with the fourth rule). Thus, although accumulation might continue for 41 years after the death of Frances, the person ultimately entitled is ascertained within 21 years from her death, and is consequently within the provisions of the act, 39 & 40 Geo. 3, c. 98. L. C. Your correspondent, L. C. (with whose remarks I have, to save time, been favoured), treats the case as being one under "The Thelusson Act," and as if it were a trust for accumulation. This is not so. It is a precedent solely governed by the rule against perpetuities, and relating to the vesting of the property itself. The limitation is, "To Frances for life-remainder to her children who attain 21; and the grandchildren, who attain 21, of a child dying under that age." Now, if you cannot, as soon as you have drawn the clause (p. 135 ante), assert that these children, and every grandchild, must necessarily all be ready to take within 21 years after the death of Frances, you have drawn a clause which will transgress the perpetuity rule, and therefore be void. The rule is that the vesting of an estate or interest in property cannot be postponed "beyond a life in being, and 21 years after." Admitting, as L. C. does, that 41 years may elapse from the death of Frances, before the property may absolutely and entirely vest, it is surprising that any doubt should exist upon the subject. Still more is it marvellous that a limitation void for remoteness should be attempted to be upheld by the Thelusson Act, which, in addition to its not relating to or affecting the perpetuity rule, was designed to place a restriction upon the period, within which that rule allowed the accumulation of income. Miser Thelusson, by his will, steered clear of the rule, and avoided collision with it. He only directed what the rule enabled him to do-viz., an accumulation of income for the same period, that he could postpone the vesting. The act passed in consequence; and which, though not interfering with his will, is always named after him, restricted accumulation, to a period much less than the time within which vesting may be postponed. As a general guide, it may be considered that the twentyone years after a testator or settlor's death is the length which is to determine the height of any heaping up of income. A minority, or twenty-one years, is the "strike" which is to keep down the heap. It is, therefore, manifest that the Thelusson Act can never produce an extension of the perpetuity rule; nor even allow an accumulation of income to the extent of that rule. It is, however, to be admitted, that if you can show that a direction to accumulate is good within the act, then the postponed enjoyment of the property must be within the rule, and, consequently, valid. This is, I presume, what L. C. intended when he introduced the Thelusson Act in a question of remoteness. The fourth period of time referred to in his letter will, he thinks, operate to save the precedent from the objection of remoteness, which period is, "during the minority of any person who, for the time being, would be entitled to the rents, if of full age." Of course, L. C. means to assert that every grandchild of Frances would, if of age, say within twenty years from her death, be entitled to share the rents. If so, he should have attacked the authorities I refer to, which show that such is not the case, and that the possibility of any grandchild not attaining twenty-one until more than twenty-one years after Frances' death, is a reason for holding the limitation void. "begging the question" to say that every grandchild, if of full age, would be entitled, and, therefore, the clause is valid. And it is arguing in a circle to say that the grandchildren are entitled because the clause is within the Thelusson Act, and the act applies because the grandchildren are entitled under the clause (see Haley v. Bannister, 4 Madd. 275). H. S. Y. It is MOOT POINTS. No. 1.-Will-Lapse-Trustees. It is a well-established rule of law that if a devisee (not being such as is provided for by the new Will Act) dies before the testator, the gift is ineffectual as to the heirs of the devisee; formerly, the heir-atlaw of the testator was entitled, and now the residuary devisee is (supposing the gift to be in tail, or for the benefit of the testator's issue or residuary, 1 Vic. c. 26, ss. 32, 33, 25). I wish to be informed how the case was where there was a devise of real estate to trustees and their heirs, and all the trustees died in the testator's lifetime. Should he have republished his will, appointing new trustees, or would a power to appoint new trustees, if extending to the case of the death of the trustees in the testator's lifetime (which, I believe, is customarily, though not invariably, done), be effectual, or would the heir-atlaw be clothed with the trust as a matter of course, or must the matter have been thrown into Chancery? W. H. S. No. 2. Trustee-New appointment-Representatives. A. was the sole trustee under a settlement of personal estates, and by the clause in the deed it was provided that, in the event of his death, his personal representative should appoint a new trustee in the place of the original trustee. A. died, and B. has taken out administration to him, but refuses to appoint a new trustee, or in any way to act as trustee, though she has the trust-funds in her hands, or, at least, allows them to remain in their state of investment, some being out at mortgage, and other portions being in the funds. B. declines to act otherwise than as administrator of A. What course can be adopted to obtain an appointment of a new trustee? and if the application must be to the court, will one new trustee be considered sufficient, there having been originally but one, or will the court insist on there being two new trustees? Will not the court direct B. to pay the costs of the application, if not personally, at least out of the assets of A., on the grounds that the latter undertook that his representative should appoint a new trustee, and that it is from a failure on the part of the latter that the expense of an application to the court has been incurred? It is assumed that the personal representative of a trustee does not, by taking out representation, become a trustee so as to prevent the necessity for appointing one in the place of the original trustee, but is not such representative for some, and what, purposes to be considered as a trustee? O. S. No. 3.-Charge of Debts.. A., by his will, charges his debts on his real estate, which he devises to B. in fee beneficially. Will this charge amount to a trust, and so stop the running of the Statute of Limitations? It is to be borne in mind that, though if a testator charges his real estate with the payment of his debts the estate. stands charged in the hands of the devisee, yet the devisee is able at any time to dispose of the estate to a purchaser discharged from the debts, and to give a valid receipt for the purchase-money (Spackman v. Timbrell, 8 Sim. 253; Richardson v. Horton, 7 Beav. 123; Doe v. Hughes, 20 Law Journ. Exch. 148; exp. Baine, 1 Mont. D. and De G. 492; Browell, 155; Prideaux, 603, 2nd edit.; Burt. Comp. p. 1508, note). Also, it has been decided that if an estate be given to one, to hold subject to a charge, the grantee is not a trustee, so as to prevent the Statute of Limitations running (Hughes v. Kelly, 3 Dru. and Warr. 482; S. C. 2 Con. and L. 223; Francis v. Grover, 10 Jur. 280; S. C. 5 Hare, 36; Prideaux, 604). The latter class of decisions raises the question intended to be here considered-namely, whether a charge of debts differs or not from an ordinary charge on land, say of ar annuity, or of a gross sum? If not, it should seem that the charge of debts would not, as many text-books say it would, operate by way of trust, and so stay the operation of the Statute of Limitations. W. H. S. No. 4. Notice to Quit-Forcible Possession. A. lets B. a cottage and garden as a weekly tenant, and gives her a proper notice to quit, by leaving it at the house with her daughter. B. was absent and did not return. At the expiration of the notice, the daughter locks up the house, with, it is believed, a few articles in it, and then leaves the town, taking the key with her. Can A., under these circumstances, take forcible possession? The mooter is under the impression she can, and that a case was decided a short time ago to that effect, although he cannot find it. He would, however, be glad of an opinion, or a reference to that case. W. M. S. No. 5.-Devise-Rule in Shelley's Case. An estate is devised in the following words :"To my grandchildren, B., C., and D., I give my estate Whitacre during their lives as tenants in And from and immediately after their respective deaths, I devise my said estate to their respective heirs and assigns for ever as tenants in common equally." common. Will the rule in Shelley's case apply here? or, in other words, will the gift of a life estate to B., C., and D., as tenants in common be considered for the purposes of this rule as the simple life estate in the strict application of the rule; the result upon the whole devise being to give B., C., and D., a tenancy in common in the fee of Whitacre (Cruise on Real Property, vol. 4, p. 374), where the prior estate is a joint tenancy? This view of the case is not doubted to be correct; but correspondents are requested to refer to books or decisions in support of it. G. C. NOTICES OF NEW BOOKS. PRIOR'S CONVEYANCING. A complete Manual of Short Conveyancing; containing-I. Common Forms; II. 250 Precedents of Assurances, with Explanatory Notes, and a copious Index. By HERMAN L. PRIOR, Barrister-at-Law. London: Wildy and Sons. WE must confess that we have never felt so much doubt and difficulty in noticing a work as we experience in noticing the above. On the one hand, we feel that the author has discharged his duty in a most painstaking and worthy manner; and on the other, we feel that we cannot recommend our readers to make use in practice of his labours-a most cruel result. It is pretty well known to our readers that we are prepared to support a more reasonable form of conveyancing than that at present in use; but we conceive that it must be founded on the existing system. In our opinion, any really useful reform must consist in a judicious retrenchment of the present verbose forms, and we think there are signs that such is the opinion of some of the writers who have favoured the profession with forms. Among these we may mention Mr. Horsey's edition of "Cornish's Conveyancing Precedents," which we have before noticed. Had Mr. Prior adopted a similar plan, his work would have been useful to the profession, and his own labours have been considerably lessened. However, Mr. Prior has chosen another course, and we are sure a sense of honesty has induced him to do so, and he has, at any rate, the merit of being original, and of exerting himself to produce a work differing from all others in existence. The present volume, which, it appears, is to be fol. lowed by another, contains, as the title-page informs us, what conveyancers call "Common Forms" and "Precedents" of the ordinary forms of assurances in all the usual branches of practice. It is but fair to Mr. Prior-and, indeed, more than any ordinary author, he deserves to have his views fairly set before the profession-to let him speak of his own labours, and accordingly we present the following extract from the Preface to the work: "It is now time to refer to some of the principles by which it is conceived conveyancing might be reduced (without any violent change, or such as would require the aid of legislative enactment) to a form not less certain and precise, but far more simple than what is ordinarily in vogue. Now, the points in the present system most requiring correction appear to be the employment of recitals, and the almost in variable want of generalisation. As regards the former of these, it really seems wonderful (excepting for the reasons above stated) how such a practice could ever have been considered necessary or even tolerable. To a lay mind, it would certainly appear enough that a conveyance from A. to B., should be a conveyance from A. to B., without being a history of A.'s antecedents (and, perhaps, those of one or two of his ancestors) as well. No doubt, as a literary production, a conveyance is much more complete and satisfactory for exhibiting the preliminary staté of the title at length-but, as in practice, this has always been well sifted beforehand, and every party to the instrument is assumed to be cognisant of it, it does seem monstrous that the entire process should be gone through again, and the draft swelled to thrice its length, for the benefit of some exoteric reader in after times; who, even if he exist, will not accept these statements on the faith of the document itself, but require their strict proof, viewing the document not as an isolated fact, but as merely one link in the chain of title. But it may be fairly urged, should a conveyance then be in every case a mere general transfer of the parties' interest, without identifying in any manner the capacity in which they execute? Certainly not-and if it should hereafter happily form the subject of a General Order,' that recitals in deeds should not be allowed for on taxation except under special circumstances, the character and grounds of execution by the different parties (framed so as to include the benefits of 'estoppel,' and others of a similar nature) would be the principal test of the conveyancer's skill. It is quite easy to frame such a statement in language clumsy, involved, and even lengthy-but it is also possible, although perhaps not easy, to include it in terms which shall neither encumber the draft nor perplex the reader." NOTICES TO CORRESPONDENTS. H. E. M.-The completest, and perhaps the best, work on Bankruptcy is Mr. Flather's edition of "Archbold." Our articles in Vols. I. and II. would, we think, so far as they go, be found sufficient for the examination; and, indeed, for that they may be considered complete. There must be a full term's previous notice, and a little more-i. e., the notice to the Master should be given three clear days before the commencement of the term preceding that in which the examination and admission is to be had; and one full term's notice in two judges' books. LEX (Sheffield).-We do not think it necessary to notice the subject any further. It is probable that it will, as you say, injure the society, instead of benefiting it. W. M.-We cannot say more exactly than before, but we should think the publishers would not delay Stephen longer than can be helped. T. J.-We are obliged by your exertions on our behalf. Perhaps we shall shortly recommence the library. Printed and published by THOMAS F. A. DAY, at his residence, No. 13, Carey-street, Lincoln's-inn-fields, in the parish of St. Clement Danes, in the county of Middlesex.- Wednesday, July 1, 1857. AUGUST 1, 1857. No. 39-Vol. IV. CONTENTS. From which a discount of TWENTY PER CENT. Is deducted for payment within a month. A larger or smaller number of pages at a proportionate price. T. DAY begs to call attention both to the Prices and Style in this Department of his Business, and to announce that he possesses every facility for executing the largest as well as the smallest Orders. Estimates on the most liberal scale furnished to Authors desirous of bringing their works before the public. LITHOGRAPHIC PRINTING. Address Headings to Note or Letter Paper, 3s. 6d. per ream. If Four Reams are ordered, no charge is made for Engraving. COPPER-PLATE PRINTING. Name-plate Engraved and 100 Cards, 4s. Bill-heads and Door Plates made and Engraved. H "OLLOWAY'S OINTMENT AND PILLS.John Smith, of Ashton-road, Openshaw, considers it a duty to make the following statement, although one cure more or less can be of little consequence, or add to their celebrity. For two years he suffered a martyrdom with an ulcerated leg. All medical assistance having failed to relieve, he was induced to obtain these remedies. After the first application, the worst symptoms assumed a milder form, and in a short time the wounds were healed, and health restored without fear of a relapse. Sold by all Medicine Vendors throughout the World; at Professor Holloway's Establishments, 244, Strand, London, and 80, Maidenlane, New York; by A. Stampa, Constantinople; A Guidícy, Smyrna; and E. Muir, Malta. Price 1s. 8d. In 8vo, price 4s 6s., sewed, : TENURES with Notes, and Copious Questions on the Text and Notes. New Edition. The mode in which this work has been edited is, in the first place, by omitting the portions quite obsolete; in the next place, by slightly altering LITTLETON'S Text, where some partial change has been made in the law since Littleton's time; and, in the third place, by adding notes to very many of the sections, noticing the changes made by statutes, and in some cases stating recent decisions of importance, and, in the last place, by furnishing a most complete series of questions on the texts and notes. London: T. F. A. DAY, 13, Carey-street, Lincoln's-inn. In one thick volume, containing upwards of 1,000 pages, price 7s. cloth, THE HE CHESS PLAYER; Edited by KLING and HORWITZ. This Work forms a complete Encyclopædia of the Game, containing Elementary Lessons for Beginners-a variety of Games by the best Players, with copious Notes-Chess Problems and Studies by the most eminent Masters, with Solutions-A Series of Papers on the History and Literature of Chess, from the earliest period to the present time--together with numerous other matters of importance to Amateurs. London: T. F. A. DAY, 13, Carey-street, Lincoln's-inn. TIONS: Embracing the Questions put at the Examination of Articled Clerks from the Earliest Period to the Present Time: Together with Full Answers thereto, and copious References to Cases and Authorities. In addition to giving the Articled Clerk the best idea of the Examination he will have to pass through, this Work forms a most comprehensive elementary treatise on the various branches of the law in consequence of the fulness and completeness with which the Answers have been given. AN In 8vo, N EXPOSITION OF THE LAND TAX: Its Assessment and Collection; showing the subjects exempt from the Tax; mode of granting relief from the Double Land Tax assessed on the Estates of Roman Catholics; and Rights and Advantages conferred by the Redemption Acts, with References to the reported Cases in the Courts of Law and Equity, bearing on the subject; and an Introductory Sketch of the History of the Land Tax. By MARK A. BOURDIN,-of the Inland Revenue Office, Somerset House.-Price Half-a-Crown, or sent free for thirty-six stamps Also, by the same Author, A GUIDE TO THE REDEMPTION OF THE LAND TAX-Containing an Analysis of the several Acts now in force for the Redemption of the Land Tax: and of the powers given by those Acts for the Sale and Mortgage of Lands for the purpose of Redemption. To which are appended Tables for calculating the Terms of Redemption of Money and Stock.-Price ls. 6d., or post free for 2s. London: T. F. A. DAY, 13, Carey-street, Lincoln's-inn. |