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No. 419-VOL. IX.
JAN. 18, 1845.
Price 1s.-with Supplement 2s.
** The following are the Names of the Gentlemen who favour THE JURIST with Reports of Cases argued and decided in the several Courts of Law and Equity:
LONDON, JANUARY 18, 1845.
Ir is one of the defects of our system of judicial machinery, that all persons appointed to judicial functions are, with certain rare exceptions, either by law or by custom, permanent holders of their appointments. It was, no doubt, a great improvement in the organisation of the superior tribunals, when the retention by a judge of his seat was made no longer to depend on the will of the Crown or its ministers, but only on his continuance of good behaviour; and it is not to this feature of the system that we direct our animadversions, but only to the extension of the rule, by custom, to this length, that a person once appointed to judicial functions is not only entitled, but almost expected, to retain them, and to labour in them while life continues to animate him. The evil, even of this, although it may be occasionally mischievous to the public, and may, more frequently, operate as a great hardship upon judges, would still not be much felt with regard to the judges of the superior tribunals. For they are, in general, originally persons of great strength of mind and force of character; their functions are of a high, invigorating, and ennobling
kind; they are
surrounded, and, as it were, pressed upon, by a body of men whose leaders vie with them in intellect, and whose junior members even will occasonally remind them that they can neither fall back
But it is otherwise with the subordinate judicial ap→ pointments, such as the presidencies of tribunals of police, and the like. There, independently of the original taint of greater feebleness of character, which, it is obvious, (we say it without meaning any disrespect to those who fill these useful, though inferior, appointments), must exist in men, in order to induce them to withdraw from the painful and laborious race of ambition, there is much in the very occupation to lower in the judge, by its continual pursuit, the standard of his intellect and the tone of his feelings.
He is withdrawn, in the first place, from that wholesome conflict with minds not much below his own, which tends so much to maintain activity and vigour in the mind of a judge, and to repress the unhappy disposition which all the sons of Adam possess, to become unduly magnified in their own estimation, if they find themselves habitually superior to those around them. In the next place, the great mass of his business is not to decide upon rights, but upon wrongs; he is rarely called upon to look at a conflict of merits, but very frequently upon a conflict of demerits. His attention is perpetually riveted upon the lowest actions emanating
from the lowest propensities of the lowest class of the people; and hence he is exposed to a species of moral miasma, tainting the very sources of his views of human nature. But, independently of the bad effect of all push forward into despotism; and they this upon a man, as such, it has a most pernicious effect
are passing before them a perpetually varied view of upon him as a police judge; for, however much it may human nature, ranging from its highest to its lowest be necessary to have penal laws to repress outrage, and aspects. They, therefore, however stationary in their however much the habitual course of things may place deteriorated by the mere effect of their duties. A su- tuation of wrongdoers, and police establishments, or seats, and however lengthened their service, are rarely persons who are in an abject worldly position, in the silabour, acting in combination with advancing age, but pressors of wrongdoers, still, it should not be forgotten, perior judge may become worse from the effect of over-such other executive bodies, in the situation of rehe will not, in general, become worse, merely by the that the principles of English law, as well as of natural
effect of his judging.
justice, assert in all persons, however abject, the right
to do that which is not forbidden by law, and the consequent immunity from punishment, or censure, or injury, if they do not transgress the law. Now, unfortunately, it is not to be doubted, that there is, in the
FURTHER OBSERVATIONS ON THE TRANS-
We shall not, we think, after the observations that
perpetual exercise of judicial functions in aid of police have on several occasions appeared in our pages, be acregulations, a tendency to confuse the mind of the per-cused of any very great affection for the Transfer of son exercising them, upon the extent and application Property Act. Yet we cannot but think that it has
been somewhat brought within the meaning of that po
of these principles. We have been led into these observations by perceiving, from time to time, some most extraordinary de-pular and ancient adage, which describes suspension as the consequence to a certain domestic animal of his loss cisions and expressions of opinion emanating from the of good fame. A sort of panic run has been made upon police bench,-decisions and expressions, which, were they to be transplanted to any superior tribunal of law this unfortunate act: every one gives it a kick; and after it has been well and thoroughly kicked for its unor of equity, would appear so immensely preposterous, as at once to call down such a storm of censure as would doubted sins, fresh grounds of insult to its prostrate form are sought and seized in sins that are imaginary, But very lately, for for ever prevent their recurrence. instance, (and we are selecting only a minor instance of or that, at least, are of such doubtful existence, as to require almost a morbid animosity to this poor legisjudicial wandering), a female was brought before a police court, charged with obstructing a constable in the lative cripple to induce one to believe in them. We execution of his duty, by refusing to obey his order to are now alluding to the strictures that have appeared abstain from doing that which the court pronounced it in more than one publication, but in particular in an otherwise able paper in a contemporary journal of julawful for her to do. It was proved that the constable had applied unwarrantable language to the prisoner, and risprudence*, on the effect of the 8th section. We will quote the passage at length:-"We now it was alleged that the prisoner had used improper language to the constable; but the accused denied the al- come," says the author of the paper in question, “to a most important provision; the words of it are as follows: legation, and the constable did not support it by proof. That, after the time at which this act shall come into What, then, did the court do? It held that the woman had a right to do what she had done; and, as she had operation, no estate in land shall be created by way of consuffered enough, by her temporary arrest, for her tingent remainder; but every estate, which, before that time, would have taken effect as a contingent remainder, indiscretion, she was discharged! That is, as she was shall take effect, if in a will or codicil, as an executory already punished enough for having done no wrong, devise, and, if in a deed, as an executory estate of the (for the court had decided that her act was not wrong- same nature, and having the same properties as an exeful), the court would mercifully not punish her any cutory devise.' This is a most alarming clause; for if The ground of such a decision can only be it give rise to any point of difficulty, that difficulty will sought in the tendency which the exercise of judicial be felt in the every-day settlements and wills of landed functions as a police magistrate gives to the mind to property. It is scarcely possible to exaggerate the conlook upon the fact of being brought into the court under sequences from such a provision, if inaccurately penned; the charge of the executive, as evidence of wrong; and and we affirm, that, unless the clause be free from obscuto consider, that to escape without punishment is so great rity, and every colour of objection, the first duty of the a rarity, that the fortunate escaper should rather look Legislature in the ensuing session should be to amend upon his escaping as a boon, than at his being needlessly or repeal it. We have looked at the clause several brought there, as an injury. These are not, however, times, and one thing constantly stares us in the face, that the principles of English law; nor are they the prin- it is self-contradictory. It states at the outset, that no ciples of any European sense. It appears to us, that, estate shall be created by way of contingent remainder. looking at the original mental calibre of those who must Contingent remainders, therefore, are swept away, it is necessarily fill such subordinate judicial appointments, made a legal impossibility to create them; but the sucand looking at the deteriorating effect of their func-ceeding part of the clause makes it equally impossible tions both on their law and their common sense, it to create an executory estate without creating a continwould be a wise measure to limit the tenure of such gent remainder; any estate, which, before the passing of appointments to some specific, and not very long pe- this act, would have taken effect as a contingent remainriod; and that it would be a wise economy that should der, shall take effect,' &c. as an executory estate. Congive liberal allowances to even a numerous body of retingent remainders, therefore, and those only, can take tired magistrates, rather than retain men in the exercise effect as executory estates, &c.; and yet the early part of functions of a pernicious tendency, till those func- of the clause says, in decided terms, that contingent retions have destroyed their public utility. mainders shall not be created: neither, therefore, can contingent remainders be created, nor any estate in their stead. This appears to us to be a plain literal reading of the clause; what the construction of the courts may be, is another matter; and we repeat, that, if the point legitimately arise, if it be arguable, legislative in
COURT OF QUEEN'S BENCH.
Jan. 11.-Evans v. Lister.-Rule for a new trial refused.
Jan. 13.-R. v. Onslow, clerk, and another, (Justices of terference is a peremptory duty; for it cuts at the root of the most ordinary family settlements of landed pro
Jan. 14.-The argument in the Baron de Bode's case was
fixed for Monday, Jan. 27.
*Law Mag., N. S., No. 1, p. 159.
perty. We think it highly probable, that, if a case came before the courts, the judges, in order to give effect to the intention of the Legislature, and to obviate the serious consequences arising from what appears to us to be the literal interpretation of the clause, would adopt a liberal construction, and consider, perhaps, the words, no estate shall be created,' as meaning that no estate shall take effect,' &c. But this is no defence of the act.
"Again, is the clause clear in other respects? Take a limitation which would be a good contingent remainder but a bad executory devise. How is it to take effect? As 'it would before the passing of the act have taken effect as a contingent remainder, it shall take effect as'-what?-an executory devise. And yet, by the rules of an executory devise, it would be void! The clause declares, clearly enough, that it shall take effect,' but how, it fails to point out."
Now, really, it appears to us, that here an attack is made upon the act which it does not deserve. The meaning of the 8th section is sufficiently plain. It does first forbid the creation of a contingent remainder, and then require a contingent remainder to be created. For it does not require contingent remainders to be created at all. It may be true, that it requires the learning of contingent remainders to be preserved by lawyers; but the preservation of the learning has nothing whatever to do with the preservation of the subject-matter of the learning. What the act does say is this:-contingent remainders shall no longer be created; no new estate shall ever be created having all the properties of contingent remainders; but an estate which, if created before the act, would have been a contingent remainder, shall henceforth be, not a contingent remainder, but an executory devise, or executory estate having the same properties. The principal practical distinction between a contingent remainder and an executory devise before the act was, that the one was destructible, if not supported by an estate in trustees to preserve; the other was not*. And it is at this distinction, in point of fact, that the 8th section of the act seems particularly levelled. It does not affect to control the discretion of testators and settlors as to the frame of the limitations they may choose to adopt; but the nature of an estate created does not depend on the mere form of the limitation; it depends on the attributes that the law chooses to annex to that particular form of limitation. An estate is not, therefore, a contingent remainder, merely because a limitation importing contingency creates it, if the law declares, as the 8th section of the Transfer of Property Act does declare, that, to that form of limitation, attributes shall be attached, different from those which attached to a proper contingent remainder. We submit, that of the meaning of this 8th section scarcely any doubt can be rationally entertained, and that the difficulties suggested as to its application are wholly imaginary. If a limitation would, before the act, have created a proper contingent remainder, then an estate created by such a limitation, after the act, will be simply an executory estate having the properties of an executory devise. In the case put by the author of the paper above cited, of an estate arising under a limitation which would have been good as a contingent remainder, but bad as an executory devise, the effect of the act will be simply to transfer it to the class of exetatory devises, where it must fare according to its merits. That it cannot take effect as a contingent remainder is plain; but it may take effect as an executory devise, without necessarily being a good executory devise; and there is nothing in the act to shew that it intended to make a good executory devise out of a bad one. Such an estate as that imagined by the learned writer will therefore cease to take effect as a contingent
* See Fearne, 418.
remainder, and will take effect as an executory devise, so far as it can; that is, so far as the frame of the limitation and the law will permit it to bear the incidents of a valid executory devise.
Another observation upon the act which we have met with in a very recent work of more elaborate charactert, and which we think also inaccurate, is, that, by the 7th section, it abolishes the power of infants having attained fifteen, to convey gavelkind lands by feoffment. Before the act, a conveyance by an infant of gavelkind lands by lease and release, or by any other mode than by feoffment, was voidable, but not void. By feoffment it was neither void nor voidable, but absolutely good. With the effect of such a feoffment, the first part of the 7th section seems to us to have nothing to do. It does not make that void if attempted by feoffment, which was before voidable, but not void, if attempted by release or grant; but only provides that a conveyance, which, before, was absolutely void, if made by release or grant, shall not be voidable only when made by feoffment, but absolutely void. It assimilates the effects of feoffment and release where a conveyance by the latter would have been absolutely void; but it leaves untouched the effect of a feoffment, where a conveyance by release would not have been absolutely void. Does the second part of the section more nearly touch the case? We contend not. The second part has obviously the intention of doing nothing more than abolishing all tortious creations of estate, and reducing the effect of any assurance, which before the act would have created an estate by wrong, to the effect of some one of the assurances termed by the law innocent.
It may certainly be argued, that, according to the grammatical construction of the second branch of the 7th section, the passage following the disjunctive is to be read as a distinct enactment, "that no assurance shall have any other effect than the same would have if it were to take effect as a release, surrender, grant, lease, bargain and sale, or covenant to stand seised, as the case may be;" and that, if so read, it cuts down the effect of a feoffment of gavelkind lands by an infant to a voidable conveyance. But such a construction would manifestly do violence to the very visible intention of the second branch of the 7th section, which is simply the abolition of the power of creating estates by wrong. The part of the second branch of the section following the disjunctive is a mere piece of conveyancer's diffuseness and iteration, in explanation of the preceding sentence, and will, we contend, be read as referring entirely to assurances which would have created estates by wrong. In fact, the sentence does two things; it first destroys the efficacy of any assurance to create an estate by wrong, and then, by way of negative, provides what effect any assurance shall have which would have created an estate by wrong, viz. it shall not have any other effect than, or, in other words, it shall have the same effect as, an innocent assurance. If this be, and we contend that it is, the true construction, the clause has obviously nothing to do with the feoffment of gavelkind lands by an infant, which never did create an estate by wrong, but was an assurance as much consistent with the law, having regard to the custom, as a feoffment of socage lands by an adult.
We contend, therefore, that gavelkind lands may still be well conveyed by feoffment by an infant having attained fifteen. The point is of some practical importance, and will, no doubt, be brought under the notice of the courts ere long, as the effect of the Inheritance Act has been to make it the interest of tenants in gavelkind to exercise the power of alienation over their lands at as early a period as possible. (See 1 Jarm. Conv., 3rd ed., p. 139). C. S. D.
Williams on the Principles of the Law of Real Property, pp. 95 and 112.
TUESDAY, JANUARY 10.
John B. Morris, and Thomas Morris, Leominster, Herefordshire, bankers, Feb. 12 at 11, District Court of Bankruptcy, Birmingham, aud. ac.-Rich. John Webb, Bath, Somersetshire, wine merchant, Feb. 6 at 11, District Court of Bankruptcy, Bristol, aud. ac.; at 12, div.-Hen. Gardner, Liverpool, merchant, Feb. 6 at 12, District Court of Bankruptcy, Liverpool, aud. ac.—Jos. Fletcher, Liverpool, colour manuJOHN CURWEN, Bridge-place, Vauxhall, Surrey, cheese- facturer, Feb. 6 at 12, District Court of Bankruptcy, Livermonger, dealer and chapman, Jan. 24 and Feb. 27 at half- pool, aud. ac.-Adam Patterson, Liverpool, livery-stable past 11, Court of Bankruptcy, London: Off. Ass. Al-keeper, Feb. 7 at 11, District Court of Bankruptcy, Liverpool, sager; Sols. Dean & Dixon, St. Swithin's-lane.-Fiat dated aud. ac.-John Jardine, Liverpool, merchant, Feb. 7 at 12, District Court of Bankruptcy, Liverpool, aud. ac.; Feb. 8 at LOUIS JEAN BAPTISTE VAUDEAU and LOUIS 11, div.-Thomas Wilson and Wm. Wilson, Liverpool, merONEZIME BENJAMIN VAUDEAU, Wood-street, chants, Feb. 10 at 12, District Court of Bankruptcy, LiverCheapside, London, dealers in artificial flowers, dealers and pool, aud. ac.-George Harriot, Ormskirk, Lancashire, beer chapmen, Jan. 24 at half-past 12, and Feb. 27 at 12, Court brewer, Feb. 10 at 11, District Court of Bankruptcy, Liverof Bankruptcy, London: Öff. Ass. Whitmore; Sols. Hodg-pool, aud. ac.-Job Tristram, Two Mile-houses, Basford, son & Burton, Salisbury-street, Strand. Fiat dated Nottinghamshire, beer-house keeper, Feb. 8 at 11, District Jan. 13. Court of Bankruptcy, Leeds, aud. ac.; Feb. 11 at 11, div.— WILLIAM TYDEMAN, Chelmsford, Essex, timber merRob. Russell, Bradford, Yorkshire, provision merchant, Feb. 8 chant and coal merchant, dealer and chapman, Jan. 21 at 2, at 11, District Court of Bankruptcy, Leeds, aud. ac.; Feb. 11 and Feb. 25 at 12, Court of Bankruptcy, London: Off. at 11, div.-Aquila Shepherd and Jas. Shepherd, HuddersAss. Belcher; Sol. Hooker, 8, Bartlett's-buildings, Hol-field, Yorkshire, merchants, Feb. 8 at 11, District Court of born.-Fiat dated Jan. 10. Bankruptcy, Leeds, aud. ac.; Feb. 11 at 11, div.- Wm. C. CHARLES FREDERICK WARMAN, Houndsditch, Clough, Eye, Suffolk, apothecary, Feb. 6 at half-past 11, London, china and glass dealer, Jan. 24 at 2, and Feb. 25 Court of Bankruptcy, London, div.-J. Coles, New Bond-st., at 1, Court of Bankruptcy, London: Off. Ass. Pennell; Middlesex, jeweller, Feb. 6 at half-past 11, Court of BankSol. Heath, 33, Gracechurch-street.-Fiat dated Jan. 11. ruptcy, London, div.-J. F. Cork and J. L. De Carle, New WILLIAM MOYES and THOMAS MORING, Camo- Bond-street and Heathfield-terrace, Turnham-green, Middlemile-street, London, carmen, dealers and chapmen, Jan. 21 sex, coach builders, Feb. 14 at 11, Court of Bankruptcy, at 12, and March 1 at 1, Court of Bankruptcy, London: London, div.-Wm. Archibald Mearns, Acre-lane, Clapham, Off. Ass. Green; Sols. Hilleary & Co., Fenchurch-street.Surrey, ale and porter brewer, Feb. 4 at 12, Court of BankFiat dated Jan. 8. ruptcy, London, div.-John Gregory Webb, RosamondJAMES PELL YALLOP, Durham-street, Hackney-road, buildings, Islington, Middlesex, mineral water manufacturer, and Pritchard's-place, Hackney, Middlesex, carpenter and Feb. 4 at 1, Court of Bankruptcy, London, div.-Morris builder, Jan. 21 at 11, and March 1 at 12, Court of Bank- Martin, Bristol, upholsterer, Feb. 7 at 1, District Court of ruptcy, London: Off. Ass. Follett; Sols. Norton & Son, Bankruptcy, Bristol, div.-Robert Ball Palmer, Bath, SomerNew-street, Bishopsgate.-Fiat dated Jan. 11. setshire, watch maker, Feb. 7 at 12, District Court of BankARTHUR BRIDESON, Clare-street, Clare-market, Mid-ruptcy, Bristol, div.-Rees Williams, Bristol, dealer in butter, dlesex, cheesemonger, Jan. 21 at 2, and Feb. 27 at 11, Feb. 4 at 1, District Court of Bankruptcy, Bristol, div.Court of Bankruptcy, London: Off. Ass. Graham; Sols. Wm. Charters and Peter Charters, Merthyr Tydvil, GlamorPerring & Co., Lawrance Pountney-place. - Fiat dated ganshire, tea dealers, Feb. 6 at 11, District Court of BankJOHN STEADMAN, Hayfield-place, Mile-end-road, Mid-ruptcy, Bristol, div.-John Holdroyd, North-moor, near Seadlesex, engineer and smith, Jan. 24 and Feb. 25 at 11, Court of Bankruptcy, London: Off. Ass. Edwards; Sols. Morris & Co., Moorgate-street-chambers, Moorgate-street. MICHAEL CRONACH and MARX HIRSCHMANN, Size-lane, London, merchants, traders, dealers and chapmen, Jan. 21 at 2, and Feb. 19 at 1, Court of Bankruptcy, London: Off. Ass. Johnson; Sol. Linklater, Leadenhallstreet.-Fiat dated Jan. 2.
-Fiat dated Jan. 4.
ton Delaval, Northumberland, farmer, Feb. 6 at 11, District Court of Bankruptcy, Newcastle-upon-Tyne, div.-James Bannister and Dinah Simpson, Liverpool, shipwrights, Feb. 6 at half-past 12, District Court of Bankruptcy, Liverpool, div.— W. Newall, jun., and A. Harrison, Manchester, grocers, Feb. 14 at 1, District Court of Bankruptcy, Manchester, fin. div. -Hen. Denziloe, Bridport, Dorsetshire, grocer, Feb. 7 at 1, District Court of Bankruptcy, Exeter, div.-John Wolland and William Wolland, Exeter, Devonshire, turners, Feb. 7 at 1, District Court of Bankruptcy, Exeter, div.—Wm. Hen. Bates, Birmingham, factor, Feb. 11 at 12, District Court of Bankruptcy, Birmingham.
To be allowed, unless Cause be shewn to the contrary on the
THOMAS JOPLIN, Sunderland, Durham, linen and woollen draper, dealer and chapman, Jan. 23 at 11, and March 5 at 1, District Court of Bankruptcy, Newcastle-upon-Tyne: Off. Ass. Baker; Sols. Brignal, Durham; Hartley, 6, Southampton-st., Bloomsbury.-Fiat dated Jan. 8. JOHN BLAKE, Ballast-hill, Sunderland, Durham, hardwareman and edge-tool manufacturer, dealer and chapman, James Tomlin, St. Michael's-alley, Cornhill, London, ship Jan. 22 at 2, and Feb. 26 at half-past 2, District Court of broker, Feb. 6 at 12, Court of Bankruptcy, London.-Rich. Bankruptcy, Newcastle-upon-Tyne: Off. Ass. Wakley; E. Lee, Craven-yard, Drury-lane, Middlesex, steam machine Sols. Price & Co., Wolverhampton; Moore, Bishopwear-printer, Feb. 6 at half past 1, Court of Bankruptcy, London. mouth; Bower & Son, 46, Chancery-lane, London.-Fiat dated Jan. 3.
CHARLES LEWIS, Bath, Somersetshire, innkeeper and licensed victualler, Jan. 24 and Feb. 25 at 11, District Court of Bankruptcy, Bristol: Off. Ass. Miller; Sol. Cruttwell, Bath.-Fiat dated Jan. 7.
RICHARD BRATTON, sen., Shrewsbury, Shropshire, cabinet maker, furniture broker, dealer and chapman, Jan. 28 and Feb. 15 at 1, District Court of Bankruptcy, Birmingham: Off. Ass. Christie; Sols. Motteram & Knowles, Birmingham; Parkes & Co., Bedford-row, London.-Fiat
dated Jan. 3.
-Wm. Kent Roberts, Abingdon, Berkshire, Feb. 5 at halfpast 1, Court of Bankruptcy, London.-Cecil Sober Taylor Walker, Oxford-street, Middlesex, artificial florist, Feb. 4 at 12, Court of Bankruptcy, London.-Wm. Sawyer, William-street, St. George's East, Middlesex, oilman, Feb. 5 at 1, Court of Bankruptcy, London.-Wm. Luke Dore, Egham, Surrey, innkeeper, Feb. 5 at 1, Court of Bankruptcy, London.-John Wates, Kent-road, Surrey, victualler, Feb. 5 at 11, Court of Bankruptcy, London.-Alphonse Lequeutre, Chingford-mills, Essex, miller, Feb. 4 at 12, Court of Bankruptcy, London.-John Clark Ross, Savage-gardens, London, merchant, Feb. 4 at 1, Court of Bankruptcy, London.-Matthew Waller, Percy-street, Tottenham-court-road, Middlesex, and Birmingham, patent electro plater, Feb. 4 at 12, Court of Bankruptcy, London.-Morris Martin, Bristol, upholsterer, Feb. 11 at 11, District Court of Bankruptcy, Bristol.-Jas. Leybourn, Bradford, Yorkshire, provision shopkeeper, Feb. 6 at 11, District Court of Bankruptcy, Leeds.-Edward Glover,