Practical Points.- Notices of New Books: Kent on Commercial and Maritime Law. 203 ship, to be a great misbehaviour in the said favourably known to English lawyers, who Thomas Martin, and a contempt of this court, are now deriving some return, in kind, for doth think fit to order that the said Thomas the stores of legal treasure which our transMartin, having personal notice hereof, do atlantic brethren received from our common shew cause unto this court, the first general seal after Michaelmas next, why he should not ancestors. Amongst the American authors stand committed to the prison of the Fleet, for of the greatest note may, in particular, be the said contempt and misbehaviour, and that mentioned the names of Story, Kent, and he do then personally attend this court; and Marshall, all of whom have largely conthat the said letter and bank note of 20. be tributed to raise the character of the Amedeposited in the hands of the registrar, subject rican Bench and Bar. to the further order of this court." Martin's case, 2 Russ. & Myl. 674. INSOLVENT DEBTORS. We have for the present to call the attention of our readers to the labours of Chancellor Kent. The treatise before us is In the case of Baker v. Sydee, 7 Taunt. 179, it well adapted to give the student a favour able impression of the legal writers of America. It comprises that part of Kent's Commentaries which treats of Commercial and Maritime Law, and cannot fail to be in was decided that under the Insolvent Debtors' Act then in force, (53 G. 3, c. 102), an insolvent was only discharged in respect of debts due to creditors named in the schedule; and interesting to every lawyer who has leisure the subsequent case of Taylor v. Buchanan, 4 Barn. & Cress. 419, it was ruled that the discharge of the insolvent prevails only to the extent of the debt specified in the schedule. The same rule has recently been recognised by a Court of Equity. A petition was presented by Sir Thomas Clarges, stating himself to have been a creditor of Jacobs the insolvent, at the time of his first insolvency, for the sum of 2361. 58., although in the schedule then delivered by the insolvent, he was represented as a creditor for the sum of 108/. only, and stating further, that the master to whom the cause was referred had refused to admit him as a creditor under the decree for a larger sum than 1087, and praying that the master might be directed to allow him and the other creditors under the insolvencies, such sums larger than the amounts stated in the schedules as they might be able to establish; and Sir John Leach, M. R., held, that under the Insolvent Debtors' Act, the insolvent was discharged with respect to debts due from him only to the extent of the sums stated by him in his schedule, and directed that the petitioner should go before the master to make such claim in the character of a general creditor as he should be advised. Barton v. Tattersat, 2 Russ. & Myll. 541. NOTICES OF NEW BOOKS. to read beyond the standard works of his own country. This department of the Law is indeed founded on the same principles as that of Great Britain, and the multitude of cases which occur in America may serve to illustrate the principles laid down, although they cannot be cited as authority in the British Courts. The following summary of the principal contents of the volume will shew the very extensive and interesting nature of the subjects treated of: 1. The History of Maritime Insurance. 4. The Title to Merchant Vessels. 6. The Contract of Affreightment. 9. Insurance of Lives and against Fire. 11. Bailment. 12. Principal and Agent. We are much gratified in bearing witness to the able elucidation of the doctrines comprised in the volume, and the learning, A Practical Treatise on Commercial and research, and sound judgment, which are THE eminent writers on American Jurisprudence are becoming more and more CHANGES IN THE LAW IN THE No. II. AMENDMENT OF THE LAW OF WILLS. I VICTORIA, C. 26. Publication not to be requisite-That every will executed in manner herein before required shall be valid without any other publication thereof. (s. 13.) Will not to be void on account of incompetency of attesting witness.-That if any person who shall attest the execution of a will shall at the time of the execution thereof or at any time afterwards be incompetent to be admitted a witness to prove the execution thereof, such will shall not on that account be invalid. (s. 14.) No will to be revoked by presumption.—That no will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances. (s. 19.) No will to be revoked but by another will or codicil, or by a writing executed like a will, or by destruction.-That no will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid, or by another will or codicil executed in manner herein-before required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is herein-before required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same. | (s. 20 ) No alteration in a will shall have any effect unless executed as a will-That no obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or have any effect, except so far as the Gifts to an attesting witness to be void.-That words or effect of the will before such alteraif any person shall attest the execution of any tion shall not be apparent, unless such alterawill to whom or to whose wife or husband any tion shall be executed in like manner as herebeneficial devise, legacy, estate, interest, gift, in-before is required for the execution of the or appointment, of or affecting any real or will; but the will, with such alteration as part personal estate (other than and except charges thereof, shall be deemed to be duly executed and directions for the payment of any debt or if the signature of the testator and the subscrip. debts), shall be thereby given or made, such|tion of the witnesses be made in the margin devise, legacy, estate, interest, gift, or appoint- | or on some other part of the will opposite or ment shall, so far only as concerns such person near to such alteration, or at the foot or end attesting the execution of such will, or the of, or opposite to a memorandum referring to wife or husband of such person, or any person such alteration, and written at the end or some claiming under such person or wife or husband, other part of the will. (s. 21.) be utterly null and void, and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove the validity or invalidity thereof, notwithstand ing such devise, legacy, estate, interest, gift, or appointment mentioned in such will. (s. 15.) Creditor attesting to be admitted a witness. That in case by any will any real or personal estate shall be charged with any debt or debts, and any creditor, or the wife or husband of any creditor, whose debt is so charged, shall attest the execution of such will, such creditor notwithstanding such charge shall be admitted a witness to prove the execution of such will, or to prove the validity or invalidity thereof. (s. 16 ) Executor to be admitted a witness. That no person shall, on account of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of such will, or a witness to prove the validity or invalidity thereof (s. 17.) Will to be revoked by marriage-That every will made by a man or woman shall be revoked by his or her marriage (except a will made in exercise of a power of appointment, when the real or personal estate thereby appointed would not in default of such appointment pass to his or her heir, customary heir, executor, or administrator, or the person entitled as his or her next of kin, under the Statute of Distributions.) (s. 18.) No will revoked to be revived otherwise than by re-execution or a codicil to revive it.-That no will or codicil, or any part thereof, which shall be in any manner revoked, shall be revived otherwise than by the re-execution thereof, or by a codicil executed in manner hereinbefore required, and showing an intention to revive the same; and when any will or codicil which shall be partly revoked, and afterwards wholly revoked, shall be revived, such revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shown. (s. 22.) A devise not to be rendered inoperative by any subsequent conveyance or act. That no conveyance or other act made or done subsequently to the execution of a will of or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked as aforesaid, shall prevent the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of bis death. (s. 23) A will shall be construed to speak from the death of the testator.-That every will shail be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. (s. 24.) Changes in the Law. A residuary devise shall include estates comprised in lapsed and void devises.-That, unless a contrary intention shall appear by the will, such real estate or interest therein as shall be comprised or intended to be comprised in any devise in such will contained, which shall fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law or otherwise incapable of taking effect, shall be included in the residuary devise (if any) contained in such will. (s. 25.) 205 want or failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the time of the death of such person, and not an indefinite failure of his issue, unless a contrary intention shall appear by the will, by reason of such person having a prior estate tail, or of a preceding gift, being, without any implication arising from such words, a limitation of an estate tail to such person or issue, or otherwise: Provided, that this act shall not A general devise of the testator's lands shall extend to cases where such words as aforesaid include copyhold and leasehold as well as free-import if no issue described in a preceding hold lands. That a devise of the land of the testator, or of the land of the testator in any place or in the occupation of any person mentioned in his will, or otherwise described in a general manner, and any other general devise which would describe a customary, copyhold, No devise to trustees or executors, except for or leasehold estate if the testator had no free-a term or a presentation to a church, shall pass hold estate which could be described by it, shall be construed to include the customary, copyhold, and leasehold estates of the testator, or his customary, copyhold, and leasehold estates, or any of them, to which such description shall extend, as the case may be, as well as freehold estates, unless a contrary intention shall appear by the will. (s. 26). A general gift shall include estates over which the testator has a general power of appointment. That a general devise of the real estate of the testator, or of the real estate of the testator in any place or in the occupation of any person mentioned in his will, or otherwise described in a general manner, shall be construed to include any real estate, or any real estate to which such description shall extend (as the case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will; and in like manner a bequest of the personal estate of the testator, or any bequest of personal property described in a general manner, shall be construed to include any personal estate, or any personal estate to which such description shall extend (as the case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will. (s. 27.) A devise without any words of limitation shall be construed to pass the fee. That where any real estate shall be devised to any person with out any words of limitation, such devise shall be construed to pass the fee simple, or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a contrary intention shall appear by the will. (s. 28.) gift shall be born, or if there shall be no issue who shall live to attain the age or otherwise answer the description required for obtaining a vested estate by a preceding gift to such issue. (s. 29.) a chattel interest.—That where any real estate (other than or not being a presentation to a church) shall be devised to any trustee or executor, such devise shall be construed to pass the fee simple or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a definite term of years, absolute or determinable, or an estate of freehold, shall thereby be given to him expressly or by implication. (s. 30.) Trustees under an unlimited devise, where the trust may endure beyond the life of a person beneficially entitled for life to take the feeThat where any real estate shall be devised to a trustee, without any express limitation of the estate to be taken by such trustee, and the beneficial interest in such real estate, or in the suplus rents and profits thereof, shall not be given to any person for life, or such beneficial interest shall be given to any person for life, but the purposes of the trust may continue beyond the life of such person, such devise shall be construed to vest in such trustee the fee simple, or other the whole legal estate which the testator had power to dispose of by will in such real estate, and not an estate determinable when the purposes of the trust shall be satisfied. (s. 31.) Devises of estates tail shall not lapse.—That where any person to whom any real estate shall be devised for an estate tail or an estate in quasi entail shall die in the lifetime of the testator leaving issue who would be inheritable under such entail, and any such issue shall be living at the time of the death of the testator, such devise shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will. (s. 32.) Gifts to children or other issue who leave The words "die without issue,” or “die with- issue living at the testator's death shall not lapse. out leaving issue," shall be construed to mean That where any person being a child or die without issue living at the death.-That other issue of the testator to whom any real in any devise or bequest of real or personal or personal estate shall be devised or bequeathestate the words "die without issue," or " diced for any estate or interest not determinable without leaving issue," or "have no issue," or at or before the death of such person shall die any other words which may import either a in the lifetime of the testator leaving issue, 206 Law Association for the Relief of the Widows and Families of Professional Men. and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will. (s. 33.) Act not to extend to wills made before 1838, nor to estates pur autre vie of persons who die before 1838.-That this act shall not extend to any will made before the first day of January one thousand eight hundred and thirty-eight, and that every will re-executed or republished, or revived by any codicil, shall for the purposes of this act be deemed to have been made at the time at which the same shall be so re-executed, republished, or revived; and that this act shall not extend to any estate pur autre vie of any person who shall die before the first day, of January one thousand eight hundred and thirty-eight. (s. 34.) Act not to extend to Scotland.-That this act shall not extend to Scotland. (s. 35.) Act may be altered this session.-That this act may be amended, altered, or repealed by any act or acts to be passed in this present session of parliament. (s. 36.) LAW ASSOCIATION FOR THE RE- THE following are extracts from the report of the Board of Directors to the Annual General Court, held on the 11th May last. We request the attention of our readers to the forcible appeal made to their benevolence. "Two cases have occurred during the past year strongly evincing the utility of this institution, not only to those who may be approaching the termination of their professional career, but to the young practitioner, to whose ima-| gination the possibility of an early death has scarcely ever presented itself. such pecuniary assistance as appeared to them suited to the circumstances of the case, out of the general funds of the association. The directors have also to state, that the son of a member, being the third in the same family who has been similarly assisted by the association, has been apprenticed, with a premium of 407., to a law stationer, and has been thus placed in a situation, where, by good conduct, he may earn a respectable living, and contribute to the support of his mother, who has for several years received an allowance from the association. On the occasion of the last annual meeting the sum of 1307. was placed at the discretion of the directors, to be applied by them in the relief of the families of those professional men who, unfortunately, may have died without having entitled their relations to call upon this charity by subscribing to its funds. The whole of this sum has been so applied; and although the sum thus appropriated may appear small in comparison with the income of the association, yet the directors are gratified at being able to state, that since the formation of the association, the total sum expended in this species of relief, amounts to upwards of 1800/.; affording assistance, in almost every case, to very distressing objects of its bounty; though they have to regret, that the relief thus given can at most be only occasional and of small amount. In the report of last year, allusion was made to an objection on the part of some of the members, to increasing the capital stock beyond the sum originally fixed as the permanent fund for the purposes of the association, they being of opinion that the directors should have been more liberal in the relief afforded; and that such a course of proceeding would have been the means of producing a considerable accession of members, and a more extended patronage. Taken in conjunction with this statement, was the fact, that a balance of more than £400. was then remaining unemployed in the banker's hands. With every disposition however to liberality on the part of the directors, who have during One of these cases was that of a solicitor, the year expended more in relief than in any who, having been in a respectable practice for former period, the balance at this period would nearly sixty years, became, through illness have amounted to upwards of £500. but for and other causes, unable to conduct his bu- the purchase of £265 stock. It may, persiness, which gradually tell off. Having out-haps, be said, that this very increase in the balived his friends, and, in his eightieth year, ap-lance has been produced by the omission to proaching a state of utter destitution, he ap- purchase stock in the previous year, or by the plied to the directors of this charity, to which reluctance of the board to distribute more he had been a regular subscriber from its freely in the present year the funds of the assoorigin, and he received immediate assistance. ciation, and has thus proved the correctness of A very different picture is presented in the the view taken by the advocates for more libeother case alluded to. A man in the prime of ral relief. Be this as it may, the question is life, of highly respectable connections, was at- clearly one for the consideration of the memtacked with a dangerous illness, during whichbers at large; and until some restriction against his affairs became embarrassed. Having left this country for the benefit of his health, he died on the voyage, leaving a wife and three children without any means of support, except what they might receive from their relations The widow made her case known to the board, and, being properly authenticated, they granted any further investment be placed upon the directors, it is a duty they owe to their constituents to act up to the principles of economy and prudence adopted by their predecessors. The capital stock now amounts to £17,665 2s. 10d, three per cents, producing an income of £530 per annum. On Legal Examinations and Prizes. It is not to be imagined that because hitherto the funds have been more than adequate to the claims on the society, at a future period more frequent and more urgent demands for its assistance may not occur. To make provision for the period when they shall arise, and to enable the directors in the meantime to grant assistance in a manner better proportioned to the respectability of the station to which the hapless claimants on the association once belonged, the board appeal with earnestness to those who are not yet ranked among its members, and urgently solicit their aid in establishing an ample fund for objects of such deep interest. 207 "Coun nations are conducted, do all that a But I will pass on to the third and last consideration, which is, why should a person who Looking to the auspices under which this having paid a high premium and stamp duty, society has flourished for twenty years, graced served his term of clerkship, and passed the as it is with the protection of several of the examination with credit, be lowered in the eshighest members of the law, the directors will teem of the world; because he may not have still rely on the never-failing generosity by which received the highest honours under such examithe profession is distinguished on all well-foun-nation?" A Country Articled Clerk" must ded appeals to its benevolence; and they cannot but entertain the strongest hopes that the society will, under the blessing of Divine Providence, continue to flourish, and will ever be able and ready to dispense the balm of its solace and protection to the needy and friend. less." 11th May, 1837. ON LEGAL EXAMINATIONS AND remember, that very few out of the many that are examined, can obtain distinction; and without that, there would be no use in passing; and I say, nothing is more likely to damp the energies of an articled clerk, than his being aware, that unless he is among the few who obtain extraordinary distinction, he will be made equal with those who have not passed at all; whereas, on the contrary, if to pass the examination is the goal to which he strives to attain, he will be filled, not only with eager desire to pass with credit, but to shew to the world and his profession, by his after conduct, that he has not passed in vain. In concluding my reasons against the plan laid down by "A Country Articled Clerk,” To the Editor of the Legal Observer. I would by no means wish it to be understood, Sir, that I object to distinctions altogether, but I In your Work, Vol. 14, p. 5, I have noticed do say, that there is sufficient opportunity, and in a letter from "A Country Articled Clerk," the best, and for which every student should upon the examination of articled clerks, a pa- strive, and that is, to distinguish himself by ragraph, in which he recommends in no low carefulness and anxiety in promoting the intestrains, the adoption of some plan for distin- rests of his clients; by honour and integrity guishing persons who excel at their examina-in his own conduct; and by using every means tion. This proposition upon first sight, I own, appears nothing but fair; but I think when the reasons which I shall state are fully considered, the contrary opinion will prevail. In the first place, no fixed rule can be laid down as to capacity; for instance, a London attorney ought to understand perfectly the common law, conveyancing, equity, and bankruptcy; the country attorney does not so much require the common law, and equity, but must be well acquainted with conveyancing, criminal law, and perhaps bankruptcy. In what way, I ask, could there be competition between these? one might excel in his part, in which, the other is partially ignorant; and vice versa. To make competition, there must be equal opportunity on both sides of obtaining knowledge; which, in the law, considering the different business that is carried on in different offices, and their own separate ways of conducting it, I think impossible. The next reason which I shall urge in support of my opinion is, does not the rule of Hilary Term, 1836, under which the exami to render the profession respectable, and preserve it from the imputation too frequently cast upon it through the misconduct and ignorance of its own members. Sir, D. H S. I CANNOT refrain from expressing to you the satisfaction I received on noticing the sugges tion of conferring degrees at the examination of law students, and instituting prizes for the juniors who should not have passed their examination, submitted to the board of Examiners, by your correspondent who signs himself" W. A." The institution of prizes for those who are desirous of making an honourable livelihood in the profession of a solicitor, is, I think, in every way laudable; for as the study of the law has the repute, (and justly so,) of being the driest of all studies, so is it the more requisite that the energies of the student should be awakened and kept up by something mor |