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378 Practice in Equity as to Advancing Causes.--Practical Points. to shew that it would be improper that the inconsistent with the act of parliament, cause should be heard as a short cause, nor which gives the Master of the Rolls juriswas any objection stated at the bar to the diction.e minutes proposed by the defendant. Under these circumstances, the Master of the Rolls made an order directing that the cause | PRACTICAL POINTS OF GENERAL should be advanced to be heard, upon fur

INTEREST. : wsd ther directions, as a short cause. Keen,

","1961 658.

SECURITY FROM SON TO FATHER. Mr. Wright now moved that the Master of the Rolls' order might be discharged,

QUESTIONS frequently arise as to whether and he urged that it was unprecedented.

securities given by a son to a father for See Mountford v. Cooper, 1 Keen, 464; and

money advanced, are intended to be bond Ker v. Cusac, 7 Sim. 520.

Ifide securities, or to be used at discretion. The Lord Chancellor (without calling on in the following case, in which we give the Mr. Rogers, who appeared to oppose the judgment of the Lord Chancellor, this point motion). I doubt very much whether I is discussed. The judgment sufficiently disought in any case to interfere with the closes the facts of the case, which involves order in which a Judge of another branch many of the niceties of the doctrine of preof the Court thinks fit to take the causes in sumption. his paper. The Master of the Rolls has an “It was not from any difficulty which I felt original jurisdiction, and has a paper of his as to the law of the case, that I took time to own. The present case is one in which it consider my judgment; but because I was was represented by the defendant to the

called upon to deal with a large sum of money,

in the absence of persons who had an interest Master of the Rolls, that there was nothing l in the fund, and when in strictness, there to be done, and that the decree, on further | were no parties before the Court to litigate directions, would be quite of course; and the question adversely. For that reason it the plaintiff being called upon by a notice occured to me, that the safest course migbt be of motion to object to the cause being ad- to direct a preliminary inquiry into the facts. vanced, no reason was stated on affidavit

On looking into the papers, however, I think why it should not be so advanced, and no

it is clear that the question must depend solely

upon the evidence of these two gentlemen, objection was stated at the bar to the mi

Messrs. Marten and Muspratt, from whose nutes proposed by the defendant. Under

testimony the intention of the father is necesthese circumstances, it would be very strange sarily to be collected, and that nothing would to say that the plaintiff has such a vested be gained by sending the cause into the Masinterest in the unavoidable delays of the ter's Office. Of the jurisdiction of the Co Court, that he is entitled to prevent the I entertain no doubt whatever. cause coming on, till all the causes which

“In this case a large sum of money was ad

vanced by the plaintiff's father, for the purhave been set down before it (and which

pose of paying off the debts of his son. That may be long litigated cases) shall have been

advance may either have been made by way of disposed of. The only real question would gift, or as a loan to the son. The taking a be, whether it was fair to the other suitors security for the amount is primâ fucie evidence of the Court to take this cause out of its that the father meant originally to treat the turn. The plaintiffs are bound to be ready sum as a debt : but that presumption is capable when the cause is in a proper state to be

of being explained away and rebutted; and

even if the sum constituted a debt in the heard, and it is only an accident, arising first inst

s first instance, the debtor, according to the from the state of the other causes, that it |authorities, is at liberty to shew that the does not come on immediately. I have creditor subsequently altered his intention and never heard it doubted that the Court will treated it as a gift. exercise its jurisdiction as to the time when “In the present case both circumstances it will hear a cause which is in a state to be concur. Upon the evidence of the gentlemen heard, the subpænas to hear judgment be

with whom the bond was deposited, I cannot

'suppose that the father intended to treat the ing returnable. I see no ground for my

money, wbich he advanced on his son's behalf, interference in this case, and I very much

as being, at all events, a debt. He plainly doubt, whether I could interfere, even if I meant to keep alive the security for a time, as a thought that the Master of the Rolls had means of controlling and influencing the connot exercised a sound discretion in the pre- duct of his son ; and that was the main object of sent instance. Such an interference would

the instrument, to which the securing of the be very inconvenient, and I think it extremely doubtful whether it would not be

e See 3 G, 2, c. 30.

Practical Points.--Notices of New Books : Martin's Conveyancing. 379 som advanced, was only collateral and sub- | sidiary, but it does not appear from the testi

NOTICES OF NEW BOOKS. inopy of the referees, that the father ever actually dealt with the bond as creating a debt, or as forming a part of his assets.

" With respect to the six years during which Common Forms in Conveyancing ; with Introthe referees had the power of entirely dis duction, and Notes. By Thomas Martin, charging the obligation by executing a memo- Esq., of Lincoln's Inn, Barrister at Law. randum to that effect, the father had delegated 1837. that discretion to them as two of his confidential friends; and the discretion was wholly This volume forms the second part of the

inconsistent with the notion that the bond was second volume of Mr. Martin's Conveyanclegiven merely, or principally, to secure the re-ing, and is devoted to common forms under payment of a sum of money. Within that

the heads of trusts, powers, provisoes, and period, events had taken place, which, as the referees themselves state, induced them to

declarations and covenants. So far as we think that the claim was no longer available: I have examined them, they appear to us to the father and son were completely reconciled answer the purpose designed, although and united ; and the conduct of the son rather in a diffuse style of drawing. We throughout had been highly satisfactory to the fully agree with some general observations father. Now, if the events took place which

contained in the preface to this part on

contained in the nreface to + would render it the duty of the referees to exercise the trust reposed in them, by indors

common forms, which are well worthy of ing upon the bond the proposed memorandum,

the attention of our younger friends. We of which the effect would be to avoid the have no hesitation in saying, that more security and discharge the debt at law, the will be learnt of the Practice of Conveyancsituation of the plaintiff cannot, in a Court of ing from a diligent study of common forms Equity, be affected by their omission to do that than in any other way. They are the tools 'which they ought, under the circumstances, to which must be used in framing any instruhave done. " That of itself would be a sufficient ground

ment, and the more familiar the conveyon which to rest the plaintiff's title to relief. I ancer is with them, the more readily will he But there is also another ground, to be deduced

round to be deduced construct it. Mr. Martin, who writes very s from the principles which were distinctly laid agreeably, thus expresses his opinions on

down in the cases of Wekett v. Raby, 2 Bro. this subject: P. C. 386, Tom). ed; and Eden v. Smyth, 5 Ves. 431 ; namely, that whether this obligation “When we consider that the art of Convey. constituted a debt or not, either originally or ancing consists in applying the principles of during the continuance of the prescribed alienation to practice by means of appropriate period, the father subsequently did not intend instruments or assurances, it is at once obvious "ihat it should be treated as a debt due from that, to the practitioner, the forms of conveyhis son to his own estate, and be put in force ancing constitute an important branch of study. accordingly. Nearly six years elapsed after It is one, however, which is very often negthese two gentlemen ceased, according to the lected. Many are content with knowing no letter of the condition, to have any authority more of the subject thau is just sufficient to or controul ; nevertheless, throughout the enable them to use the forms as they use their whole of that period, the father left the bond watches, without inquiring into the mechanism in their hands, and treated his son in a manner within, satisfied, so to speak, if they can wind expressive of his entire reconciliation and satis-them up. This is to be accounted for, partly faction with him, and shewing that the object from the supposed dryness of the subject; but of the transaction having been attained, he un chiefly, I suspect, from an opinion cominon derstood and considered the instrument as no among students, that while they have a ge. longer subsisting and in force. Both points nuine and authentic collection of settled forms. seem to me to concur in the present case. any profound study of them is unnecessary. Upon the evidence I thiok that the bond was It may be remarked, however, that many subnot in the first instance intended to operate jects, for which we afterwards feel the keenest as & debt at all events : at any rate, the father, relish, are often, at first, exceedingly distasteby his subsequent conduct and his mode of deal.ful. What, for inslance, can be more repulsive ing, shewed that he did not mean it should in the beginning than the learning of a foreign now so operate; but that in fact he abandoned language; and yet, when once we have ac. any claim in respect of it.

quired the skill to use it as an instrument of “ Under these circumstances, the authority thought, how exquisite the enjoyment, enduof the cases referred to sufficiently establishes ing us almost to the consciousness of a new the jurisdiction of the Court to deal with the in sense. And paradoxical as it will sound to strument in question. There must, therefore, some, I am convinced that even the forms of be a decree ihat the bond be delivered up to conveyancing may become not even a useful. ve cancelled.”-Flower v. Martin, 2 Myl. & but an interesting subject of study. It is of C. 459.

the importance, however, of the study in question, that I wish more immediately to speak;

380

Notices of New Books : Martin's Conveyancing.

for if that be granted, however dry the subject, I the actual state of the law, is the more liable no one who cares for his own professional to be slighted from the circumstance that character or success in life, will neglect to many are apt to reckon the legislature as the prosecute it. Now, whenever we make use of only source of changes in the law, overlooking any form, two things are to be considered; the constant influence of what the foreign jufirst, whether it adequately expresss the inten- rists rightly distinguish from legislation, and tion of the parties; and, secondly, whether the denominate jurisprudence. It is a maxim intention só expressed can, with reference to oftener repeated than understood, that the the existing laws, be carried into effect. The province of the Judge is to declare the law, first of these objects, though it may be reck- and not to make it. But whatever be the oned a mere inatter of style or composition, theory of our system, let us consider its acfor which any educated man is fitted, does in tual working in practice; and we shall then fact require us to possess, in order to attain find that, while the statute book is only occathe end in view, a complete command of the sionally consulted. The reports of adjudged technical language of conveyancing. It has cases are habitually referred to. This is one. been objected against this language, that it is of the consequences of a customary or common too technical ; but the truth is, the more law, such as that which obtains in this country, technical the nomenclature of any science is and whose characteristic features I have else. (assuming that each term has really a definite where endeavoured to describe : it contains scientific meaning), the more exact and per- within itself a principle of growth; and, like fect is the science. To introduce into legal | our language, is constantly undergoing a proinstruments the language ein ploved on ordinary gressive development and change. Tbe fore. occasions, might perbaps enable the drafts- going considerations, while they evince the man, ambitious of such things, to set forth his importance of the study in question, will serve skill in fine writing, but assuredly, such a dis- to shew how utterly irrelevant is the com. play would ultimately be at the expense of his parison which has been often made between the client. Words indeed, which are in common English forms of conveyancing and those of use, are not only often wanting in precision, France, to the prejudice it is supposed of the but subject to continual variation in meaning.former. For this is not an absolute, but a rela. The sound may be the same, while the sense is tive question ; and, consequently, can only be changed ; just as the coins of the realm con- determined by reference to the system to which tinue stainped with the same denomination of each form exclusively belongs. To find fault value, though they have lost both purity and with the English forms for wanting the brerity weight. In truth, a fixed standard of value is of the French, is as if any one should censure not more important to the political economist, our countrywomen for wearing long shoes than is a fixed nomenclature to the convey while the Chinese wear short ones,-forgetting “ancer : without the one, as without the other, that shoes must be fitted to the feet. In the the contracts of mankind would be perpetually forms of conveyancing, perspicuity is of such frustrated; and I know of no other way in paramount importance, that all elliptical exwhich the language of conveyancing can be pressions, and anything like a suggestive style, acquired, than by a patient study of its forms. such as is naturally adopted in conversation, But if with this view, such a study be de- ought to be scrupulously shunned. And hence serving of attention, how much more impor- Horne Tooke has justly remarked, in his Di. tant is it in regard to the other considera-versions of Purley, that “ legal instruments tion I have mentioned, nainely, whether the in- have always been, and always must be, re. tention of the parties as einbodied in any given markably more tedious and prolix than any instrument is warranted by the existing laws. other writings, in which the same clearness Many indeed, as already reinarked, take this and precision are not equally important. For question as granted, because they have followed abbreviations open a door for doubt; and, some settled form. It is undoubtedly desirable by the use of them, what we gain in time, we for several reasons to adhere as closely as pos- lose in precision and certainty." How far sible to the established forms: they have receive the existing forms of conveyancing are capable ed a settled construction, and occasion an uni- of abbreviation without losing part of their formity in practice which produces both certain substance, is a very important question, but ty and dispatch. Selden tells a story of some one which cannot be discussed within the limits mathematicians who could with one stroke of of a preface.” their pens make an exact circle, and with the next touch point out the centre; is it therefore reasonable, he asks, to banish all use of the compasses ? Now settled forms are a pair of compasses. But if any one who draws diagrams or drafts with the aid of compasses, should on that account neglect to study the properties of his figures, he had better at once banish the use of such instruments; and, like the mathematicians in the story, betake himself to his pen, or abandon the subject altogether. Tbe necessity, indeed, of habitually considering the forms of conveyancing with reference to

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Belveen rhut Hours the breaking into a CHANGES IN THE LAW IN THE House is to be considered as Burglary.- Pro

LAST SESSION OF PARLIAMENT.) vided that, so far as the same is essential to 1837.

the offence of burglary, the night shall be considered and is hereby declared to corr

mence at nine of the clock in the evening of No. XV.

each day, and to conclude at six of the clock

in the morning of the next succeeding day. ut!! · BURGLARY. 1 Vict. c. 36.

(s. 4.) Tuis act, “ to amend the laws relating to

Stealing in a Direlling House with Menace

or Threat.-That whosoever shall steal any burglary and stealing in a dwelling house," property in any dwelling house, and shall by passed on the 17th July, 1837, and will come any menace or threat put any one being into operation on the 1st October. It recites

therein in bodily fear, shall be guilty of felony,

and being convicted thereof shall be liable to that it is expedient to amend so much of be transported beyond the seas for any term 7 & 8 G. 4, c. 29, intituled “ An Act for con- not exceeding fifteen years nor less than ten

years, or to be imprisoned for any term not solidating and amending the Laws in England

""exceeding three years. (s. 5.) relative to Larceny and other Offences con- Punishment of Accessories.—That in the nected therewith,” and also so much of 9 G. 4. case of every felony punishable under this act,

every principal in the second degree and every c. 55, intituled “An Act for consolidating and

accessary before the fact shall be punishable amending the Laws in Ireland reiative to Lar- with death or otherwise in the same manner as ceny and other offences connected there the principal in the first degree is by this act with,” as relates to the punishment of any i to any felony punishable under this act (ex

| punishable; and every accessary after the fact person convicted of burglary, and so much of cept only a receiver of stolen property) shall, the same acts as relates to any person who on conviction, be liable to be imprisoned for

any term not exceeding two years. (s. 6.) shall steal any chattel, money, or valuable

steal any chattel, money, or valuable Offences punishable by Imprisonment. That security, to any value whatever, in any dwell-where any person shall be convicted of any -ing house, any person therein being put in or house any person therein heine nut in offence punishable under this act for which

imprisonment may be awarded, it shall be fear, and so much of the same acts as relates lawful for the Court to sentence the offender to the punishment of principals in the second to be imprisoned or to be imprisoned and kept degree, and of accessaries before and after the

to hard labour in the common gaol or house

of correction, and also to direct that the fact respectively to such of the felonies punish- offender shall be kept in solitary confinement able under those acts as are herein-before re- for any portion or portions of such imprisonferred to. It is therefore enacted as follows: |

ment, or of such imprisoninent with hard

labour, not exceeding one month at any one Recited Acts in part repealed after 30th time, and not exceeding three months in any Sept. 1837, ercept as to Offences on or before one year, as to the Court in its discretion shall that Day.-That so much of the said acts as seem meet. (s. 7). is herein-before referred to shall continue in Not to affect Powers of 5 8.6 W. 4, c. 38, force until and throughout the thirtieth day of and 4 G. 4, c. 64.-That nothing in this act September one thousand eight hundred and contained shall be construed to extend to the thirty-seven, and shall from and after that day alteration or repeal of any of the powers, probe repealed, except as to offences committed visions, or regulations contained in 5 & 6 before or upon the said thirtieth day of Sep. W. 4, c. 38, intituled “ An Act for effecting teinber, which shall be dealt with and punished greater Uniformity of Practice in the Governas if this act had not been passed. (s. 1.) ment of the several Prisons in England and

Burglars using Violence to suffer Death. - Wales, and for appointing Inspectors of PriThat whosoever shall burglariously break and sons in Great Britain,” or in 4 G. 4, c. 64, inenter into any dwelling house, and shall assault tituled “ An Act for consolidating and amendwith intent to murder any person being therein, ing the Laws relating to the building, repairing, or shall stab, cut, wound, beat, or strike any and regulating of certain Gaols and Houses of such person, shall be guilty of felony, and Correction in England and Wales." (s. 8.). being convicted thereof shall suffer death. Construction of the Word Property.(s. 2.)

That the word “ Property" shall throughout Punishment of Burglary.—That whosoever this act be deemed to denote every thing in. shall be convicted of the crime of burglary cluded under the words “ Chattel, Money, or shall be liable, at the discretion of the Court, valuable Security” used in the said acts of the to be transported beyond the seas for the seventh and eight years and ninth year respecterm of the natural life of such offender, or tively of King George the Fourth. (s. 9.) for any term not less than ten years, or to be offences committed within Jurisdiction of imprisoned for any term not exceeding three | Admiralty. That where any felony punishable years. (s. 3.)

under this act shall be coinmitted within the

ROBBERY AND S

382

Changes in the Law. jurisdiction of the Aduniralty of England or of|able under those acts as are herein-before 'red's 'Ireland, the same shall be dealt with, inquired | ferred to. It is therefore enacted as follows: of, tried, and determined in the same manner as any other felony cominitted within that! Repeal of Provision in recited Acts Thas jurisdiction. (s. 10.)

| so much of the said acts as is herein-before Not to eriend to Scotland.-Provided that referred to shall continue in force until and n'othing in this act contained shall extend to throughout the thirtieth day of September one Scotland. (s. 11.)

thousand eight hundred and thirty-seven, and Commencement of Acl.-That this act shall shall from and after that day be repealed, ex, commence and take effect on the first day of cept as to offences committed before or upon October one thousand eight hundred and the said thirtieth day of September, which shall thirty-seven. (s. 12.)

be dealt with and punished as if this act had not been passed. (s. 1.)

Punishment of Robbery allended with cutting

07" wounding. That whosoever shall rob any No. XVI.

person, and at the time of or immediately before or immediately after such robbery shall stah, çut, or wound any person, shall be guilty

of felony, and being convicted thereof shall 1 Vict. c. 87.

suffer death. (s. 2.) This act passed on the 17th July, and will lence.

| Punishment of Robbery attended with Vio.

That whosoever shall, being armed také effect on the 1st October. It is entitled with any offensive weapon or instrument, rob " An Act to amend the Laws relating to Rob- or assault with intent to rob any person, or

| shall, together with one or more person or perbery and stealing from the Person," and re- sons, rob or assault with intent to rob any percités that it is expedient to amend so much of son, or shall rob any person, and at the time 7 & 8 G. 4, c. 29, intituled « An Act for con. of or immediately before or immediately after

such robbery shall beat, strike, or use any solidating and amending the Laws in England | other personal violence to any person, strall be relative to Larceny and other Offences con- guilty of felony, and being convicted thereof nécted therewith,” and also so much of 9 G. 4,||

Shall be liable, at the discretion of the Court,

to be transported beyond the seas for the term €. 55, intituled “ An Act for consolidating and of his or her natural life, or for any term dot amending the Laws in Ireland relative to Lar-less than fifteen years, or to be imprisoned ceny and other offences connected therewith,”

rowth for any term not exceeding three years. (s. 3.)

Punishment for obinining Property by Threat as relates to any person who shall rob any of accusing of unnatural Crimes. That whosoother person of any chattel, money, or valuable ever shall accuse or threaten to accuse any persecurity, or who shall steal any such property mitted either with mankind or with beast, or

son of the abominable crime of buggery, comfrom the person of another, or shall assault of any assault with intent to commit the said any other person with intent to rob him, or abominable crime, or of any attempt or endea

vour to commit the said abominable crime, or

of making or offering any solicitation, persuasuch property of any other person with intent sion, promise, or threat to any person whereby to steal the same ; and so much of the same to move or induce such person to commit or

permit the said abominable crime, with a view acts as relates to any person who shall accuse

accuse or intent in any of the cases aforesaid to extort or threaten to accuse any other person of any or gain from such person, and shall by intimiinfamous crime with a view or intent to extort dating such person by such accusation or threat or gain from him, and who shall by intimidating shall be guilty of felony, and being convicted

extort or gain from such person any property, him by such accusation or threat extort or thereof shall be liable, at the discretion of the gain from him, any chattel, money, or valuable Court, to be transported beyond the seas for

the terın of his or her natural life, or for any security; and so much of the same acts as

term not less than fifteen years, or to be imprirelates to any person who shall plunder or soned for any terin not exceeding three years. steal any part of any ship or vessel which shall |(s. 9.? be in distress, or wrecked, stranded, or cast That whosoever shall rob any person, or shall

Punishment of stealing from the Person.011 shore, or any goods, merchandize, or arti- steal any property from the person of another, cles of any kind belonging to such ship or

shall be liable, at the discretion of the Court,

"to be transported beyond the seas for any terin tessel; and so much of the same acts as relates not exceeding fifteen years nor less than ten to the punishinent of principals in the second years, or to be imprisoned for any term not degree and of accessaries before and after the exceeding three years. (8. 5.)

The Punishment for ussuult with intent to rob. fact respectively to such of the felonies punish- That whosoever shall assault any person with

sha

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