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 INTEREST. made an order directing that the cause PRACTICAL POINTS OF GENERAL should be advanced to be heard, upon further directions, as a short cause. 1 Keen, 658. Mr. Wright now moved that the Master of the Rolls' order might be discharged, and he urged that it was unprecedented. See Mountford v. Cooper, 1 Keen, 464; and Ker v. Cusac, 7 Sim. 520. The Lord Chancellor (without calling on Mr. Rogers, who appeared to oppose the motion).-I doubt very much whether I ought in any case to interfere with the order in which a Judge of another branch of the Court thinks fit to take the causes in his paper. The Master of the Rolls has an original jurisdiction, and has a paper of his own. The present case is one in which it was represented by the defendant to the Master of the Rolls, that there was nothing to be done, and that the decree, on further directions, would be quite of course; and the plaintiff being called upon by a notice of motion to object to the cause being advanced, no reason was stated on affidavit why it should not be so advanced, and no objection was stated at the bar to the minutes proposed by the defendant. Under these circumstances, it would be very strange to say that the plaintiff has such a vested interest in the unavoidable delays of the Court, that he is entitled to prevent the cause coming on, till all the causes which have been set down before it (and which may be long litigated cases) shall have been disposed of. The only real question would be, whether it was fair to the other suitors of the Court to take this cause out of its turn. The plaintiffs are bound to be ready when the cause is in a proper state to be heard, and it is only an accident, arising from the state of the other causes, that it does not come on immediately. I have never heard it doubted that the Court will exercise its jurisdiction as to the time when it will hear a cause which is in a state to be heard, the subpoenas to hear judgment being returnable. I see no ground for my interference in this case, and I very much doubt, whether I could interfere, even if I thought that the Master of the Rolls had not exercised a sound discretion in the present instance. Such an interference would be very inconvenient, and I think it extremely doubtful whether it would not be SECURITY FROM SON TO FATHER. QUESTIONS frequently arise as to whether securities given by a son to a father for money advanced, are intended to be bond fide securities, or to be used at discretion. In the following case, in which we give the judgment of the Lord Chancellor, this point is discussed. The judgment sufficiently discloses the facts of the case, which involves many of the niceties of the doctrine of presumption. "It was not from any difficulty which I felt as to the law of the case, that I took time to consider my judgment; but because I was called upon to deal with a large sum of money, in the fund, and when, in strictness, there in the absence of persons who had an interest were no parties before the Court to litigate the question adversely. For that reason it occured to me, that the safest course might be to direct a preliminary inquiry into the facts. On looking into the papers, however, I think it is clear that the question must depend solely upon the evidence of these two gentlemen, Messrs. Marten and Muspratt, from whose testimony the intention of the father is necessarily to be collected, and that nothing would be gained by sending the cause into the Master's Office. Of the jurisdiction of the Court I entertain no doubt whatever. "In this case a large sum of money was advanced by the plaintiff's father, for the purpose of paying off the debts of his son. That advance may either have been made by way of gift, or as a loan to the son. The taking a security for the amount is prima facie evidence that the father meant originally to treat the sum as a debt: but that presumption is capable of being explained away and rebutted; and first instance, the debtor, according to the authorities, is at liberty to shew that the creditor subsequently altered his intention and treated it as a gift. even if the sum constituted a debt in the "In the present case both circumstances concur. Upon the evidence of the gentlemen with whom the bond was deposited, I cannot suppose that the father intended to treat the money, which he advanced on his son's behalf, as being, at all events, a debt. He plainly meant to keep alive the security for a time, as a means of controlling and influencing the eonduct of his son; and that was the main object of the instrument, to which the securing of the e See 3 G. 2, C. 30. Practical Points.-Notices of New Books: Martin's Conveyancing. sum advanced, was only collateral and subsidiary; but it does not appear from the testimony of the referees, that the father ever actually dealt with the bond as creating a debt, or as forming a part of his assets. NOTICES OF NEW BOOKS. 379 Common Forms in Conveyancing; with Introduction, and Notes. By Thomas Martin, Esq., of Lincoln's Inn, Barrister at Law. 1837. THIS volume forms the second part of the second volume of Mr. Martin's Conveyanc "With respect to the six years during which the referees had the power of entirely discharging the obligation by executing a memorandum to that effect, the father had delegated that discretion to them as two of his confidential friends; and the discretion was wholly inconsistent with the notion that the bond was given merely, or principally, to secure the re-ing, and is devoted to common forms under payment of a sum of money. Within that period, events had taken place, which, as the referees themselves state, induced them to think that the claim was no longer available: the father and son were completely reconciled and united; and the conduct of the son throughout had been highly satisfactory to the father. Now, if the events took place which would render it the duty of the referees to exercise the trust reposed in them, by indorsing upon the bond the proposed memorandum, of which the effect would be to avoid the security and discharge the debt at law, the situation of the plaintiff cannot, in a Court of Equity, be affected by their omission to do that which they ought, under the circumstances, to have done. the heads of trusts, powers, provisoes, and declaratione and covenants. So far as we have examined them, they appear to us to answer the purpose designed, although rather in a diffuse style of drawing. We fully agree with some general observations contained in the preface to this part on common forms, which are well worthy of the attention of our younger friends. We have no hesitation in saying, that more will be learnt of the Practice of Conveyancing from a diligent study of common forms than in any other way. They are the tools which must be used in framing any instrument, and the more familiar the conveyancer is with them, the more readily will he construct it. Mr. Martin, who writes very agreeably, thus expresses his opinions on this subject: "That of itself would be a sufficient ground on which to rest the plaintiff's title to relief. But there is also another ground, to be deduced from the principles which were distinctly laid down in the cases of Wekett v. Raby, 2 Bro. P. C. 386, Toml. ed; and Eden v. Smyth, 5 Ves. 431; namely, that whether this obligation "When we consider that the art of Conveyconstituted 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 that 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 than 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 common derstood and considered the instrument as no longer subsisting and in force. Both points seem to me to concur in the present case. Upon the evidence I think that the bond was not in the first instance intended to operate as a debt at all events: at any rate, the father, by his subsequent conduct and his mode of dealing, shewed that he did not mean it should now so operate; but that in fact he abandoned any claim in respect of it. "Under these circumstances, the authority of the cases referred to sufficiently establishes the jurisdiction of the Court to deal with the instrument in question. There must, therefore, be a decree that the bond be delivered up to be cancelled."-Flower v. Martin, 2 Myl. & C. 459. among students, that while they have a genuine and authentic collection of settled forms, any profound study of them is unnecessary. It may be remarked, however, that many subjects, for which we afterwards feel the keenest relish, are often, at first, exceedingly distasteful. What, for instance, can be more repulsive in the beginning than the learning of a foreign language; and yet, when once we have acquired the skill to use it as an instrument of thought, how exquisite the enjoyment, enduing us almost to the consciousness of a new sense. And paradoxical as it will sound to some, I am convinced that even the forms of conveyancing may become not even a useful, but an interesting subject of study. It is of 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, 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 so 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 matter 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 occa the 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 onebeen 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 instruments the language employed on ordinary occasions, might perhaps enable the draftsman, ambitious of such things, to set forth his skill in fine writing, but assuredly, such a display would ultimately be at the expense of his client. Words indeed, which are in common use, are not only often wanting in precision, but subject to continual variation in meaning. The sound may be the same, while the sense is changed; just as the coins of the realm continue stamped with the same denomination of value, though they have lost both purity and weight. In truth, a fixed standard of value is not more important to the political economist, than is a fixed nomenclature to the conveyancer: without the one, as without the other, the contracts of mankind would be perpetually frustrated; and I know of no other way in which the language of conveyancing can be acquired, than by a patient study of its forms. But if with this view, such a study be deserving of attention, how much more important is it in regard to the other consideration I have mentioned, namely, whether the intention of the parties as embodied in any given instrument is warranted by the existing laws. Many indeed, as already remarked, take this question as granted, because they have followed some settled form. It is undoubtedly desirable for several reasons to adhere as closely as possible to the established forms: they have received a settled construction, and occasion an uniformity in practice which produces both certainty and dispatch. Selden tells a story of some mathematicians who could with one stroke of 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. The necessity, indeed, of habitually considering the forms of conveyancing with reference to our language, is constantly undergoing a progressive development and change. The foregoing considerations, while they evince the importance of the study in question, will serve to shew how utterly irrelevant is the comparison which has been often made between the English forms of conveyancing and those of France, to the prejudice it is supposed of the former. For this is not an absolute, but a relative question; and, consequently, can only be determined by reference to the system to which each form exclusively belongs. To find fault with the English forms for wanting the brevity of the French, is as if any one should censure our countrywomen for wearing long shoes while the Chinese wear short ones,-forgetting that shoes must be fitted to the feet. In the forms of conveyancing, perspicuity is of such paramount importance, that all elliptical expressions, and anything like a suggestive style, such as is naturally adopted in conversation, ought to be scrupulously shunned. And hence Horne Tooke has justly remarked, in his Diversions of Purley, that " legal instruments have always been, and always must be, remarkably more tedious and prolix than any other writings, in which the same clearness and precision are not equally important. For abbreviations open a door for doubt; and, by the use of them, what we gain in time, we lose in precision and certainty." How far the existing forms of conveyancing are capable of abbreviation without losing part of their substance, is a very important question, but one which cannot be discussed within the limits of a preface." Changes in the Law. CHANGES IN THE LAW IN THE LAST SESSION OF PARLIAMENT, 1837. No. XV. 381 Between what Hours the breaking into a House is to be considered as Burglary.-Provided that, so far as the same is essential to the offence of burglary, the night shall be considered and is hereby declared to commence at nine of the clock in the evening of each day, and to conclude at six of the clock in the morning of the next succeeding day. (s. 4.) Stealing in a Dwelling House with Menace or Threat.-That whosoever shall steal any property in any dwelling house, and shall by any menace or threat put any one being therein in bodily fear, shall be guilty of felony, and being convicted thereof shall be liable to be transported beyond the seas for any term not exceeding fifteen years nor less than ten exceeding three years. (s. 5.) years, or to be imprisoned for any term not THIS act, s6 'to amend the laws relating to burglary and stealing in a dwelling house," passed on the 17th July, 1837, and will come into operation on the 1st October. It recites that it is expedient to amend so much of 7 & 8 G. 4, c. 29, intituled "An Act for consolidating and amending the Laws in England relative to Larceny and other Offences con- Punishment of Accessaries.-That in the nected therewith," and also so much of 9 G. 4, case of every felony punishable under this act, c. 55, intituled “An Act for consolidating and every principal in the second degree and every accessary before the fact shall be punishable amending the Laws in Ireland relative to Lar-with death or otherwise in the same manner as ceny and other Offences connected there. with," as relates to the punishment of any person convicted of burglary, and so much of the same acts as relates to any person who 'shall steal any chattel, money, or valuable security, to any value whatever, in any dwelling house, any person therein being put in fear, and so much of the same acts as relates to the punishment of principals in the second 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 referred to. It is therefore enacted as follows: Recited Acts in part repealed after 30th Sept. 1837, except as to Offences on or before that Day. That so much of the said acts as is herein-before referred to shall continue in force until and throughout the thirtieth day of September one thousand eight hundred and thirty-seven, and shall from and after that day be repealed, except as to offences committed before or upon the said thirtieth day of September, which shall be dealt with and punished as if this act had not been passed. (s. 1.) Burglars using Violence to suffer Death.That whosoever shall burglariously break and enter into any dwelling house, and shall assault with intent to murder any person being therein, or shall stab, cut, wound, beat, or strike any such person, shall be guilty of felony, and being convicted thereof shall suffer death. (s. 2.) Punishment of Burglary. That whosoever shall be convicted of the crime of burglary shall be liable, at the discretion of the Court, to be transported beyond the seas for the term of the natural life of such offender, or for any term not less than ten years, or to be imprisoned for any term not exceeding three years. (s. 3.) the principal in the first degree is by this act punishable; and every accessary after the fact to any felony punishable under this act (except only a receiver of stolen property) shall, on conviction, be liable to be imprisoned for any term not exceeding two years. (s. 6.) Offences punishable by Imprisonment.-That where any person shall be convicted of any offence punishable under this act for which imprisonment may be awarded, it shall be lawful for the Court to sentence the offender to be imprisoned or to be imprisoned and kept for any portion or portions of such imprisonment, or of such imprisonment with hard labour, not exceeding one month at any one time, and not exceeding three months in any one year, as to the Court in its discretion shall seem meet. (s. 7) Not to affect Powers of 5 & 6 W. 4, c. 38, and 4 G. 4, c. 64.-That nothing in this act contained shall be construed to extend to the alteration or repeal of any of the powers, provisions, or regulations contained in 5 & 6 W. 4, c. 38, intituled "An Act for effecting greater Uniformity of Practice in the Government of the several Prisons in England and Wales, and for appointing Inspectors of Prisons in Great Britain," or in 4 G. 4, c. 64, intituled "An Act for consolidating and amending the Laws relating to the building, repairing, and regulating of certain Gaols and Houses of Correction in England and Wales." (s. 8.) " Construction of the Word " Property."That the word Property" shall throughout this act be deemed to denote every thing included under the words “ Chattel, Money, or valuable Security" used in the said acts of the seventh and eight years and ninth year respectively of King George the Fourth. (s. 9.) Offences committed within Jurisdiction of Admiralty.-That where any felony punishable under this act shall be committed within the jurisdiction of the Admiralty of England or of Ireland, the same shall be dealt with, inquired of, tried, and determined in the same manner as any other felony committed within that jurisdiction. (s. 10.) Not to extend to Scotland.-Provided that nothing in this act contained shall extend to Scotland. (s. 11.) Commencement of Act.-That this act shall commence and take effect on the first day of October one thousand eight hundred and thirty-seven. (s. 12.) No. XVI. ROBBERY AND STEALING. 1 VICT. c. 87. able under those acts as arc herein-before res ferred to. It is therefore enacted as follows; Repeal of Provision in recited Acts -That so much of the said acts as is herein-before referred to shall continue in force until and throughout the thirtieth day of September one thousand eight hundred and thirty-seven, and shall from and after that day be repealed, except as to offences committed before or upon the said thirtieth day of September, which shall be dealt with and punished as if this act had not been passed. (s. 1.) Punishment of Robbery attended with cutting or wounding. That whosoever shall rob any person, and at the time of or immediately be fore or immediately after such robbery shall stab, cut, or wound any person, shall be guilty of felony, and being convicted thereof shall suffer death. (s. 2.) Punishment of Robbery attended with VioThis act passed on the 17th July, and will lence. That whosoever shall, being armed take 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, shall be relative to Larceny and other Offences con- guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, nécted therewith,” and also so much of 9 G. 4, to be transported beyond the seas for the term c. 55, intituled "An Act for consolidating and of his or her natural life, or for any term not amending the Laws in Ireland relative to Lar-less than fifteen years, or to be imprisoned ceny and other offences connected therewith," #ts relates to any person who shall rob any for any term not exceeding three years. (s. 3.) Punishment for obtaining Property by Threat of accusing of unnatural Crimes.-That whosoever shall accuse or threaten to accuse any person of the abominable crime of buggery, committed either with mankind or with beast, or of any assault with intent to commit the said abominable crime, or of any attempt or endeavour to commit the said abominable crime, or of making or offering any solicitation, persua sion, promise, or threat to any person whereby to move or induce such person to commit or permit the said abominable crime, with a view or intent in any of the cases aforesaid to extort or gain from such person, and shall by intimi dating such person by such accusation or threat extort or gain from such person any property, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be transported beyond the seas for the term of his or her natural life, or for any term not less than fifteen years, or to be imprisoned for any terin not exceeding three years. (s. 4.) other person of any chattel, money, or valuable security, or who shall steal any such property from the person of another, or shall assault any other person with intent to rob him, or shall with menaces or by force demand any such property of any other person with intent to steal the same; and so much of the same acts as relates to any person who shall accuse or threaten to accuse any other person of any infamous crime with a view or intent to extort or gain from him, and who shall by intimidating him by such accusation or threat extort or gain from him, any chattel, money, or valuable security; and so much of the same acts as relates to any person who shall plunder or steal any part of any ship or vessel which shall be in distress, or wrecked, stranded, or cast on shore, or any goods, merchandize, or articles of any kind belonging to such ship or ✦essel; and so much of the same acts as relates the punishment of principals in the second degree and of accessaries before and after the Punishment for assault with intent to rob.fact respectively to such of the felonies punish-That whosoever shall assault any person with to Punishment of stealing from the Person.That whosoever shall rob any person, or shall steal any property from the person of another, shall be liable, at the discretion of the Court, to be transported beyond the seas for any term not exceeding fifteen years nor less than ten years, or to be imprisoned for any term not exceeding three years. (s. 5.) |