268 Practical Points of General Interest.— Changes in the Law. PRACTICAL POINTS OF GENERAL THE RIGHTS OF A MOTHER AS TO HER In our last volume, (13 L. O., p. 98,) we considered the rights of a mother as to her children, and more particularly with reference to the case of Rex v. Greenhill, 6 Nev. & M. 244, and 4 Adol. & E. 624. The last mentioned reporters have added notes of two other cases relating to the same subject which we shall give. See the bill of Mr. Serjeant Talfourd, relating to the custody of infants, ante, p. 23, which will be brought forward next session. In Michaelmas vacation, 1817, Lord Ellenborough issued a summons, at the instance of William Augustus Dobbyn, calling upon Maria Philippa Dobbyn, his wife, to shew cause why a writ of habeas corpus should not issue to bring before him the body of Philippa Dobbyn, their daughter, aged six years, for the purpose of her being delivered over to the father. The summons was attended before Mr. Justice Holroyd, who ordered the writ to issue. The defendant having neglected to make any return to the writ, Lord Ellenborough issued his warrant pursuant to the stat. 56 G. 3, c. 100, to apprehend the defendant, in order that she might find bail for her appearance in the Court of King's Bench on the first day of the following Hilary Term to answer the contempt. She was apprehended under the warrant, and entered into a recognizance to appear accordingly. On the first day of Hilary Term she appeared in Court, and was asked whether she would undertake to appear before a judge at chambers, and bring the said Philippa Dobbyn with her, which she declined to do; whereupon she was examined upon interrogatories, and reported in contempt. The reasons alleged by her for not giving up the child were, that the time of the father was principally devoted to the gaming table, and the society of women of infamous character; that he, having attempted the life of the defendant, was likely to do the same to the child; and that he was of a brutal disposition; that he had beat defendant with a stick, and desired the woman with whom she lived to turn her out of doors, declaring she was not his wife, but his discarded mistress; that on one occasion, on his returning from the gaming table in a dreadful temper, he accused the defendant of inconstancy; she protested her innocence, but nevertheless he nearly strangled the defendant, and inflicted on her several violent blows, and exclaimed "she was dead, he had murdered her;" that she exhibited articles of the peace against him, and he was bound over to keep the peace in 2000.; that he endeavoured to procure a divorce, but could not succeed, though she did not oppose it; that, although he could see the child whenever he wished it, he had only sent for her twice within the last three years and a half, when she was immediately sent; that she believed his only motive in claiming the child was a wish to give her, Mrs. Dobbyn, pain, and not affection to the child. Easter Term, 1818.-The defendant was examined upon interrogatories and reported in contempt. By consent, sentence was postponed till the next term. And it was referred to Mr. Taunton to determine in whose custody Philippa Dobbyn should be placed, or remain for the present to abide his further to inquire into all matters in difference between the prosecutor and the defendant, touching the said Philippa Dobbyn, and to determine in whose custody the said Philippa Dobbyn should be permanently placed, and to regulate the access to be had by the prosecutor and defendant to the said Philippa Dobbyn, if he should adjudge it proper that both parents should have such access. And to make such further order respecting her as he should think it, the prosecutor and defendant undertaking (by the rule) to pay obedience to such orders. Rex v. Dobbyn, 4 A. & E. 644. Hilary Term, 1829.-Wife and child, daughter of three years old, brought up by habeas corpus sued out by the husband; the wife was asked if she was under any restraint; and she was told she was at liberty to go where she pleased; and it was referred to the Master to determine at what time and in what manner, and under what circumstances, the father should have access to the daughter; she in the mean time to remain with the mother. Rex v. Wilson, 4 A. & E. 645. order. And it was also referred to Mr. Taunton CHANGES IN THE LAW IN THE 1 Vict. cap. 69. for the Commutation of Tithes in England and . Wales," and passed 15th July, 1837. THIS is entituled An Act to amend an Act Apportionments and agreements may be confirmed, although the commissioners are not satisfied of the accuracy of the maps.-It recites that an act was passed in the seventh year of the reign of his late Majesty King William the Fourth, intituled "An Act for the Commutation of Tithes in England and Wales ;" and it is expedient to amend the said act in certain respects: and it is enacted that the tithe commissioners for England and Wales shall have power, if they shall think fit, to confirm under their hands and seal any instrument of voluntary apportionment, and also any agreement for giving land instead of tithes, made according to the provisions of the said act, to which shall be annexed a map or plan agreed to be adopted by a parochial meeting, although they shall not be satisfied of the accuracy of such map or plan, or that the several quantities of land specified in such Changes in the Law. apportionment or agreement are therein truly stated; but no recital of quantity or admeasurement of land, nor any map or plan annexed to any such confirmed apportionment or agreement, nor any copy thereof, shall be deemed evidence of the quantity of land referred to therein, or of the accuracy of such map or plan, unless the said map or plan, as well as the instrument of apportionment or agreement, shall be signed by the commissioners and sealed with their official seal: Provided always, that the commissioners, in case they shall confirm such voluntary apportionment or agreement, but shall not think proper to seal such map or plan, shall certify under their hands upon some part of such map or plan that the same is the map or plan referred to in such voluntary apportionment or agreement, as the case may be, which certificate shall be received as evidence of that fact. (s. 1.) 269 poor of the parish or district of which the boundary shall be so set out, and of every parish or district thereunto adjoining, and also of every land owner or his agent through or abutting upon whose lands the boundary so set out shall pass. (s. 2.) Judgment of Commissioners respecting boundaries may be removed by certiorari.—That any person interested in the judgment or determination of the said commnissioners or assistant commissioner respecting the said boundaries, who shall be dissatisfied with such determination, may within six calendar months next after the publication of the said boundaries, by delivering or leaving such description as aforesaid, move the Court of Queen's Bench to remove the said judgment by certiorari into the said Court, the party making such applition giving eight days notice of such application, and of the matter and ground thereof, in For determining parochial boundaries.-That writing, to the said commissioners; and the two thirds in value of the owners of the lands decision of the said commissioners or assistant in any parish or district of which the tithes commissioner, or, in case of removal as aforeare to be commuted, and respecting the boun- said, the decision of the said Court therein, daries of which any dispute or doubt shall shall be final and conclusive, as to the boundaarise, may, by writing under their hands or theries of such parish or district, for all purposes hands of their agents, signed at a parochial whatsoever; and after the expiration of the meeting called for that purpose according to said term of six calendar months, the judgment the provisions of the said act in the case of a shall not be removed or removeable by cerparochial meeting for making a voluntary tiorari or any other writ or process whatsoever agreement for the commutation of the tithes into any of her Majesty's Courts of Record at of a parish, signify their request to the tithe Westminster or elsewhere; and no certiorari commissioners that the said commissioners shall be allowed to remove any such judgment should inquire into and settle such boundaries; unless the party prosecuting the certiorari and thereupon the said commissioners, or any shall before allowance thereof enter into a reassistant commissioner specially appointed un-cognizance before one of the justices of the der their hands and seal for that purpose, shall, by examination of witnesses upon oath (which oath the said commissioners or assistant commissioner are and is hereby empowered to administer), and also using any other powers contained in the said act, and by such other legal ways and means as they or he shall think proper, inquire into, ascertain, and set out the boundaries of that parish or district: Provided always, that such commissioners or assistant commissioner (before they or he proceed to set out the boundaries of such parish or district) shall give public notice of their or his intention, by writing under their or his hands or hand, to be affixed on the most public doors of the churches of that parish or district, and of every parish and district thereunto adjoining, and also by advertisement to be inserted in some newspaper circulated in the county in which such parish or district is situated, and also by writing to be delivered to or left ten days at least before the time of setting out such boundaries at the last or usual place of abode of the respective land owners, or the respective agents of such land owners, through or abutting upon whose lands the boundaries of such parish or district are supposed to pass; and such commissioners or assistant commissioner shall, within one month after ascertaining and setting out the boundaries, publish the same by causing a description thereof in writing to be delivered to or left at the place of abode of one of the churchwardens or overseers of the said Court, in the sum of fifty pounds, with condition to prosecute the same without wilful delay, and to pay to the said commissioners their full costs and charges within one calendar month after the judgment shall be confirmed, to be taxed according to the custom of the Court. (s.3.) The apportionment need not contain the several amounts of corn charged on each estate.— That it shall not be necessary to state in any instrument of apportionment the several quanties of wheat, barley, and oats charged upon the estate of any land owner, or upon any portion of such estate included in such apportionment; provided that the whole sum agreed or awarded to be paid by way of rent-charge instead of the tithes of the whole parish or district be therein stated, and the whole number of bushels of wheat, barley, and oats ascertained to be the fixed quantity of corn of which the variable value is to be paid in money by way of rentcharge, and also the several sums of money which were at the time of the confirmation of the apportionment of equal value with the quantities of wheat, barley, and oats apportioned on each estate or each separate portion thereof, according to the provisions of the said act, be also stated therein. (s. 4.) Particulars of land not necessary to be stated in instruments of voluntary apportionments, if three-fourths of the land owners so request.— That it shall not be necessary to state in any instrument of voluntary apportionment made in consequence of a parochial agreement, | visions of the said act, for the land owners and whether the several lands are then cultivated | tithe owners having any interest in such lands as arable, meadow, or pasture land, or as wood land, common land, or howsoever otherwise, nor to state the amount charged on the several closes of every individual land owner, if threefourths of the land owners interested in the said apportionment shall by some writing under their hands request the commissioners to direct that such statements be omitted. (s. 5.) or tithes (with the consent of the diocesan and of the patron of the living whenever tithes payable to any spiritual person in right of his benefice are in question), to agree, or for the tithe commissioners to determine, in case the commutation shall have been made by their award, that the several rent-charges which shall be made payable in lieu of tithes to each of the tithe owners respectively shall be fixed and ap When only one land owner, no draft of apportionment nor meeting for objections neces-portioned upon such particular lands as to them sary. That it shall not be necessary for the commissioners to send a copy of any draft of voluntary apportionment made in consequence of a parochial agreement for the inspection of any parties, nor to hold any meeting to hear any objection thereto, when one land owner shall be seised, either in fee simple or fee tail, of the whole of the lands that are not glebe lands in such parish. (s. 6.) Prices at which conversion from money into corn is to be made.-That the prices at which the conversion from money into corn is to be made, at the time of the confirmation of each apportionment, according to the provisions of the said act, are seven shillings and one farthing for a bushel of wheat, three shillings and elevenpence halfpenny for a bushel of barley, and two shillings and nine-pence for a bushel of oats. (8. 7.) shall seem convenient, so that no lands are charged with more than their due proportion of rent-charge, when the determination shall be by the compulsory award of the commissioners; and every agreement or determination to that effect, when confirmed by the tithe commissioners, shall be binding upon and conclusive against all persons and bodies politic, notwithstanding any doubt as to the identity of the lands out of which the tithes originally issued in lieu whereof such distinct rent-charges are made payable. (s. 9.) Provision for the period intervening between the end of former compositions and the commutation.-That with the first payment of rent charge under any agreement for the commutation of tithes shall also be paid any sum which shall be agreed to be paid in consideration of the time (if any) which may intervene between For the assessment and recovery of rates.- the termination of any previous agreement or That all rates and charges to which any rent- composition for the payment of tithe and the charge payable in lieu of tithes shall be liable time at which, by the said agreement for commay be assessed upon the owner of the rent- mutation, the lands shall be discharged from charge, and the whole or any part thereof may | the payment of tithe, regard being had to the be recovered from any one or more of the whole annual amount of rent charge agreed to occupiers of the lands out of which such rent-be paid, and to the other circumstances of each charge shall issue, in case the same shall not case. (s. 10.) be sooner paid by the owner of the rent-charge upon whom the same shall be assessed, in like manner as any poor-rate assessed on such occupier or occupiers in respect of such lands may be recovered, upon giving to such occupier twenty-one days notice in writing previous to any one of the half-yearly days of payment of the rent-charge, and the collector's receipt for the payment of such rates and charges, or of any part thereof, shall be received in satisfaction of so much of the rent-charge by the owner thereof; but no occupier shall be liable to pay at any one time, in respect of such rates and charges, any greater sum than the rentcharge payable in respect of the lands occupied by him in the same parish shall amount to for the current half year in which such notice shall have been given. (s. 8.) Parties to a parochial agreement may fix when it sholl begin to operate.—That the parties to a parochial agreement may agree thereby, or by any supplemental agreement made and confirmed in like manner, that the lands included in the said agreement shall be discharged from the payment of tithes (except as excepted in the said act) from the first day of January next preceding, or from the first day of April, or first day of July, or first day of October preceding or following the confirmation of the apportionment, instead of the first day of January next following the confirma. tion: Provided always, that in every case the first payment of rent charge shall be made and recoverable by the means provided in the said act, on the expiration of six calendar months from the time from which such lands are discharged from the payment of tithes. (s. 11.) For determining the lands chargeable with rent-charge. That in all cases where the same Deeds not chargeable with stamp duty.person or body politic is not entitled to the That no deed or declaration authorized by the perception of the whole of the tithes of any said act for the commutation, release, or merparish, and the liability of the lands to the pay-ger of tithes shall be chargeable with any stamp inent of tithes is not in dispute, but the lands duty. (s. 12.) out of which each tithe owner is entitled to the perception of his portion or parcel of tithes are not well defined, and also in all cases where such lands lie dispersedly throughout the parish, it shall be lawful, at any time before the confirmation of any apportionment under the pro Assistant Commissioner may be sworn before two Justices or a Master in Chancery.—That any assistant commissioner appointed to assist in carrying the said act into execution, may take the oath required of him by the said act before any two justices for the county, riding, Notices of New Books: Rouse's Copyhold and Court-Keeping Practice. division, liberty, or jurisdiction wherein such assistant commissioner shall be resident at the time of his appointment, or before a master extraordinary in her Majesty's High Court of Chancery; and every such oath so taken shall be as valid and effectual as if the same had been taken before one of the Judges of her Majesty's Court of Queen's Bench or Common Pleas or one of the Barons of the Court of Exchequer. (s. 13.) This act to be taken as part of 6 & 7 W. 4, c. 71. That this act shall be taken to be a part of the said act for the commutation of tithes in England and Wales. (s. 14.) NOTICES OF NEW BOOKS. 271 lessening fatigue, by allowing business to be transacted by clerks, which would otherwise require personal attention, and by facilitating the instruction of articled clerks; and on the other hand, to practitioners having attention but seldom drawn to any particular branch of practice, a work on that branch will be useful in affording the means of transacting any business connected with it, easily and accurately. "The present treatise has been prepared under the belief that copyhold and court-keeping practice is most peculiarly within the principle of the above observation; and that methodising and simplifying the practice, and embodying a full collection of precedents, would not only be found useful in business, but would dispel the prejudice which has long existed in the minds of many professional men, that copyhold practice is of a complicated nature, and cannot be understood without long study. Copyhold and Court-Keeping Practice; with nearly Two Hundred Precedents, and the Act for Amendment of the Laws with respect The object has been to treat of each to Wills: intended not only for use in the branch of practice in such a manner that reference need only be made to the part expressOffice of the more experienced Practitioner, ly relating to the point requiring attention; but simplified in such a manner as to enable a and such reference will at once give the prac Town or Country Solicitor, previously untice generally, each step to be taken according acquainted with Copyhold or Court-Keeping Practice, to transact with ease all the General Business in Admissions; Purchases and Sales; Mortgages; Annuities; Leases; Deeds for Benefit of Creditors; Bankruptcy and Insolvency; Wills, Partitions, and Enfranchisements; Court-Keeping; Adjustment of Fines, Fees, &c. &c. By Rolla Rouse, of the Middle Temple, Esq. London: Published for the Proprietors of "The Legal Observer," By Richards & Co. 1837. THE general nature of this work is de. scribed in the title-page above transcribed. On the Law of Copyholds, the profession possesses works of great value and excellence; but the Practice in that department of legal business appears to have been almost entirely neglected, and a work like the present was much needed by the profession. We think Mr. Rouse has_ably supplied the deficiency. He states the Practice from extensive personal experience, and has produced a very useful, and, in a considerable degree, an original work. His Instructions to the Practitioner are clear and full, and comprehend every kind of transaction, whether of the Copyholder or the Lord of the Manor. The Forms are also equally extensive and complete; and the work is in all respects skilfully and conveniently arranged, and displays great care and judgment in its composition. Mr. Rouse, in his preface, states that— "A work on practice is useful to two classes of professional men :-to the experienced, in to its order and reference by a number to the precedents in the Appendix. The plan of sections has also been adopted throughout the work, as affording much greater facility of reference than when merely given generally, or even if given by pages. A subdivision of such of the precedents as may be sometimes only wanted in part is also given, and will be found servicable in instructing clerks to draw the more special documents or courts. "The following example will show the advantages of the system adopted.-Suppose a solicitor, previously unacquainted with copyhold practice, to receive instructions to act on behalf of an intended purchaser: he has merely to refer to the head" purchase" and he will find under that head and the parts of the Appendix referred to in it, all the practice and forms; comprising suggestions previous to the contract; the terms and form of contract; the abstract, its examination and sufcompleting conveyance; obtaining admission, ficiency; requisitions on title; preparing and and adjusting the steward's fees; with forms of agreements, notices, conveyances, &c. same observation applies to mortgages, leases, &c. &c. The "In like manner all the information in Court-keeping will be found under that head, with a full collection of forms; so that a professional man, without having previously turned his attention to the subject, may be enabled on obtaining a stewardship, to transact the business, make out his bills of fees, and enter his courts, with the ease and correctness of the more experienced practitioner. "The experienced Court-keeper will also be enabled by mere reference to numbers of sections, and the addition of a few words, to give such instructions to his clerk that all general business of the court may be transacted with 272 Notices of New Books. On Legal Examination Honours. out his being obliged to give his personal attention, except to the mere examination of the draft and entries; and he will also possess greatly increased facilities in making his articled clerks acquainted systematically with Copyhold and Court-keeping practice. Very great care has been taken in selecing the precedents; and many points are suggested both as to the practice and forms, which have never been given in any work hitherto published on copyholds, and which are also, many of them, applicable to freehold prac tice. 60 'The rule for value of copyhold enfranchisements has never before been published; and attention is particulary directed to the suggestions on purchase contracts, the forms of such contracts; the practical suggestions on abstracts, requisitions, and replies; the peculiar arrangement of the conveyancing forms; the suggestions connected with mortgage securities, and the more special forms; the forms and points as to trusts for creditors, bankruptcy, and insolvency: the providing for sale of copyholds under a will; the mode of obtaining partition; the enfranchisement contracts; the arrangement of court-keeping business, and forms of entries; and especially to the parts relating to steward's fees. "A full analysis of the contents has also been given, with a view to turn the attention more immediately to the particular points on which information is desired; and throughout the work every care has been taken to combine methodical arrangement with practical suggestions, and precedents drawn from drafts in actual practice." ON LEGAL EXAMINATION HONOURS. To the Editor of the Legal Observer. W. A., who appears to be the leader of those who are not content with the honour of being made attorneys through the qualifying process of the examination, but who must needs agitate for some new honours, has, I see, undertaken to answer my objections. : I beg also, with deference to the examiners, to say that the rule of court under which they act, does not authorise them to extend the examination from its intended purpose of ascertaining the general fitness and capacity of the applicants to act as attorneys, to a different object,-that of granting different degrees of sufficiency. They are, I submit, not authorised to say such are first class lawyers; such are middling lawyers; and such are ordinary lawyers, and just saved from plucking, and if any reasonable man will consider, he must see that these proposed degrees will do no good, but an infinity of evil. W. A. has compared these to degrees at colleges; but there they have several opportunities of obtaining them: here only one. Every person at college may in his turn attain the highest: here he must ever keep to his degree; the honour or dishonour must cling to him without hope of a reversal. The objection to my second reason is perhaps as palpably erroneous as can be conceived, when he says "that no sufficient distinction can exist," and that "good and bad, fit and unfit, are heaped indiscriminately together." This makes it appear that the examinations hitherto have been useless and nominal; that questions have been put, and that the examiners have, contrary to their duty, admitted the candidates, whether they were good or bad, fit or unfit." without any distinction: if this be the case, well may there be advocates for obtaining degrees; but, on the contrary, if the bad and the unfit are not admitted-and such I believe is the case, for to believe the contrary would be to impute negligence and breach of duty on the examiners-then the ground which W. A. has taken is wrong, and no further distinction is necessary. As to W. A's objection to my third reason, I say it does not apply in the least. I have shewn in the former part of my letter, the difference between obtaining degrees by successive examinations and those obtained at one only, and which can never be enlarged; and it appears to me, that unless there are successive examinations, in order to let the least in degree obtain the highest, the system proposed by W. A. will be very serious to all who study for the law, inasmuch as it fixes on the middling and last degree a marked inferiority, and as such will be regarded by their clients. In attempting to answer my first reason he does not shew its error, but proposes a plan Upon summing up the three several obwhich will, he says, if carried into effect, ob- jections of W. A., I cannot discover any reason viate it; but I still say his plan will not suc-for altering my views, but must say, the more l cessfully act and I urge again my reason that where there is not equal opportunity and necessity, there cannot be fair competition; unless indeed, the London clerks and country clerks are divided. and compete among themselves, and have two classes of each of the different grades, and so make a London optime and a country optime; but this would be invidious, and confine a clerk ever after to the district for which he was examined; as, of course, no one in the country would employ an attorney who was only qualified, as his certificate shews, to practise in London; and vice versû. consider his plan, the more I feel opposed to it. Having thus endeavoured to support my previous objections, I leave it to the profession to take the course they consider most proper; and hope that whether in my examination I am examined for degrees or not, the ultimate aim for which I consider it my duty to study may not be unsuccessful, namely, to conduct myself so as to promote in the best way in my power the interests of my clients and the respecta bility of my profession. D. H. S. |