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Eminent Conveyancers.--.Agreement to withdraw an Opposition to a Bill in Parliament. 93

Remainders and Executory Devises, published | research, united an acuteness and discrimina. in 1772. It then consisted of only 98 pages. tion which admirably fitted hiin for such a Subsequent editions were greatly enlarged. | task. Of Mr. Butler's numerous literary works. The fourth edition of that part of the work | which are chiefly of an historical and religious which relates to contingent remainders was cast, it would be irrelevant here to speak. "His published by Mr. Fearne in 1791, together | knowledge appears to have been more various with the opinions of Mr. Booth, Lord Mans- | than profound. field, and other eminent counsel, on the will! ". In this catalogue of conveyancers it would which was the subject of the case of Perrin v. be unjust to omit the names of Francis Sanders. Blake, and a prefatory address to his Lordship. author of a learned treatise on uses and He lived only to complete a few pages of that trusts, published in 1791, and James Humphportion of the work which treats of executory reys, whose luminous work on real property. devises: these, with the remainder of the which appeared in 1826, is of distinguished work as it stood in the third edition, were merit. As a compeud, concise yet clear, it is edited by Mr. Powell, 1795, with copious unrivalled. His outlines of a code, whatever notes. An improved edition, with notes and may be thought of the abstract question, beappendix, was published by Mr. Butler in speaks a mind conversant with the details of 1809. After Mr. Fearne's death, Mr. Mitchell | practice, and yet above them; capable, as Shadwell selected from his friend's manu- Bacon says, 'of casting his eyes upon some scripts a Reading on the Statute of Inrol- things which the actors themselves, especially ments, arguments on the singular case of some being interested, some led and addicted. General Stanwix, and a collection of his pro- some declared and engaged, did not or would fessional opinions; and published them in nut see.' The publication of Mr. Humphrey's 1797, under the title of his posthumous works. book called forth the contre-projet of the late

“Mr. Powell, whom I have just named, was John James Purk, in 1828. Park was, as he bimself a conveyancer of no mean repute. / avowed himself, a self educated man ;' and To him belongs the merit of having first given this, combined with his sedentary way of life. a systematic exposition of the subtle doctrine of will perhaps account for those literary heresies powers, since go admirably treated of by Sir E. which so often disfigured his writings. He Sugden. This work appeared in 1787. Mr. was, in the best sense of the word, a free Powell had previously published, in 1785, a thinker. This character is as conspicuous in very useful essay on mortgages; but his earliest | his professional opinions as in his printed work was on the learning of devises, in 1783, works. “As a lawyer, Professor Park desera since edited by Mr. Jarman with distinguished vedly ranked high-he was not unworthy of ability. Mr. Powell also published an essay the master under whom he studied (Mr. Preson the law of contracts and agreements, in ton); and one cannot but regret that his pro1790. A collection of his precedents was missing career should have been so soon cut edited by Mr. Barton, in 1803. Mr. Barton short; that, when about to reap the harvest was himself the author of several works on of his hopes, the sickle should have fallen from conveyancing; and, in 1803, published a con- his hand.” siderable collection of precedents. With the exception of Williams's precedents in convey, ancing, in 1792, no other collection of any | AGREEMENT TO WITHDRAW AN consequence appeared until Mr. Bythewood's,

OPPOSITION TO A BILL IN PARin 1821. The editor lived to finish only a very small portion of his extensive design,

1 LIAMENT. since completed by Mr. Jarman, and by Messrs. Parken & Stewart.

“A new school of conveyancing is consi- A QUESTION of considerable interest to the dered to have been formed by Charles Butler, public at the present moment, has been diswho, having raised himself to the head of this cussed in several recent cases-how far it is branch of the profession, continued during lawful to withdraw an opposition to a bill in many years to hold that conspicuous station

Parliament for a pecuniary consideration, almost without a rival. Eminently successful

and whether an agreement for this purpose as a draftsman, he did inuch by the influence

can be enforced. of his example to prune that prolixity in conveyancing which some of his distinguished pre

In the case of The Vauxhall Comp. v. Earl decessors had introduced. Greater concise Spencer and others, it was held by Sir T. ness, however, he considered to be hardly at- Plumer, V.C. that securities given in consitainable without abandoning established forms deration of withdrawing an opposition to a and language so much as to render the innova- bill in Parliament were, on grounds of pubtion a matter of experiment always hazar-lic policy, illegal; andon a bill to have such sedous, and never more so than when legal in

curities delivered up, and stock, &c. transstruments are concerned. His annotations on Lord Coke's first Institute, published in 1787,

ferred to plaintiffs, a demurrer being put in, in continuation of those of Mr. Hargrave, the same was overruled ; but this judgment though deservedly esteemed, were confessedly was reversed by Lord Eldon, C., who thus too hastily prepared to reach the high standard of his predecessor ; who to great patience of a 2 Madd. 356.

Jacob. 64

94

Agreement to withdraw an Opposition to a Bill in Parliament. - Property Lawyer. "

gave his opinion :-"There was a proposi- / of Parliament, and the proprietors of the tion to build this bridge at Vauxhall ; the shares in a projected railway, it was stipuproprietors at Battersea bridge objected, as lated on the one hand that Lord Howden their tolls would be diminished; and no one should withdraw his opposition to a bill in can say that there was any thing fraudulent Parliament for establishing the railway acin their doing what they could to prevent the cording to a certain line; and, on the other completion of this object of building another hand, that the proprietors, on the bill passing, bridge near theirs. It seems that it was should pay certain sums to Lord Howden by first agreed that some remuneration should way of compensation for the injury his land be given them, which was to be secured to would sustain, and use their best endeavours them by the Act, but they were frightened to procure a deviation from the original line by something that fell from some member of in the next session of Parliament. After the the committee, and imagined that scruples bill for establishing the railway had passed, would be entertained about it. They then the proprietors filed a bill to have the agreedetermined not to ask anything in the Act;ment delivered up to be cancelled, as being but they say if you will secure to us an contrary to public policy, and therefore void. adequate remuneration in another way, we A general demurrer for want of equity was will agree to make no opposition to your overruled by Lord Langdale, M. R. In the bill. It is argued that this was a fraud on argument and judgment great stress was laid the legislature; but I think it would be go on the circumstance of Lord Howden being ing a great way to say so, for non constat if a Peer, and that his public and private duties it had been pushed to the extent of taking were brought into conflict; but his Lordship the opinion of the House, that it might not seemed to think that, independent of this have passed the bill in its former shape. It fact, the contract was illegal, and could not cannot be said that the agreement is con.be enforced. trary to legislative policy, because one mem- It would seem, therefore, that it is not ber of the committee makes an objection clear that an agreement to withdraw an opwhich is not sanctioned or known by the position to a bill in Parliament for a pecuá. House at large.”

niary consideration is valid, or can be enThe doctrine laid down by Lord Eldon forced in equity. has been followed by the present Chancellor in the recent case of Edwards v. Grand Junction Railway Company. In that case a per

THE PROPERTY LAWYER. son acting on behalf of the subscribers to a railway, who were then soliciting a bill in Parliament for the purpose of forming them

INSOLVENT DEBTOR. into an incorporated joint stock company, By the Insolvent Debtors' Act, (7 G. 4. c. 57.) entered into a contract with the trustees of S. Ji set with the trustees of s. 30, it is enacted, that if any prisoner shall at

the time of his arrest wave in his possession, a road, whereby it was stipulated that in

order, or disposition, any goods or chattels consideration of the trustees withdrawing whereof such prisoner was reputed owner, or their opposition in Parliament, and consent whereof he had the sale or disposition as ing to forego certain clauses of which they owner, the same shall be deemed to be the had intended to press for the insertion in property of the prisoner, so as to become vested the Act, the bill was allowed to pass unop

in his assignee. posed, and without the clauses. An injunc

Where an insolvent had married and lived

with a woman, he having a foriner wife living, a tion was granted at the suit of the trustees

question arose whether the goods of the woman to prevent the company from violating the

passed to his assignee under the above section provisions contained in the omitted clauses, of the act. An action having been brought by and it was held that an agreement to with her against her supposed husband's assignees, draw or withhold opposition to a bill in Par- Tindul, C. J., said, "it was quite clear that if the liament was not illegal; and that a court of plaintiff believed himself to be married, this case equity would enforce a contract founded on would not be within the statute, because she

could not be said to be consenting to another such a consideration. But in the late case of Simpson v. Lord which he held was that of a husband ; and he

person's holding her property, when the right in Howden, first reported by our own reporter, left the question to the jury, whether she at any and recently by Mr. Keen, where there was time found out the fact of the former marriage, an agreement between Lord Howden, a Peer and after that allowed Waterman, (the man who

had married her,) to exhibit himself as the owner

of any of the goods: for such goods as she did c 1 Myl. & C. 652 ; Dig. for 1837, p. 30. allow him to appear the owner of, after such d 13 L. 0. 491. e | Keen, 583. | discovery, they were to find for the defendant;

New Orders of the Court of Equity Exchequer.- Questions at the T. T. Examination. 95

479.

but for such goods as were not held by him the last skin thereof, and the last skin of the after the discovery, they ought to find for the schedule or schedules thereto. plaintiff.” Miller v. Demetz, 1 Moo. & Rob.

5.-Caption of Answers to Marksmen. AND IT IS ORDERED, that it shall be deemed

sufficient if the caption of the answer of every NEW ORDERS OF THE COURT OF defendant who is unable to write his or her EQUITY EXCHEQUER.

name, and which shall be taken before Com. missioners in the country, states that the an

swer purporting to be sworn to by the defenGENERAL ORDERS IN EQUITY.

dant was read over to such defendant, who

appeared perfectly to understand the same, 1.-Setting down Causes and service of Sub

and made his or her mark thereto, in the prepænas ad audiendum judicium. Causes may be set doun, and Subpænas served,

sence of the Commissioners before whom such

c) answer was sworn, without requiring an affidaund made returnable on any day out of term as well as in term.

vit of the answer having been so read over. WHEREAS the present practice, that causes 6.-Copies to be delivered to the Court in can only be entered for hearing on the seal

certain Cases. day of every term, and that the subpoena ad AND IT 18 ORDER&D, in all cases of pleas, audiendum judicium can only be returnable indemurrers, and exceptions to answers as to term time, is productive of delay and incon- masters' reports of scandal or impertinence, venience: The Court DOTH ORDER, That I copies of the bill, plea, or demurrer, answer, from and after the last day of the present Tri- and exceptions, and masters' report, be denity Term causes may be set down for hearing, I livered by the party who sets down the same and the subpæna ad audiendum judicium be at the chambers of the Judge before whom the served, and made returnable on any day as well argument is to come on, one clear day at least out of term as in term, but every such sub- before the day appointed for such argument ; pæna is to be served, in a country cause, fourteen but in cases of scandal or impertinence the days, and in a town cause, ten days before the same copies are to be delivered to the Judge, same is made returnable. AND IT IS ORDERED, I as were laid before the master on the rethat service on the Clerk in Court for any party | ference. of a subpæna ad audiendum judicium shall be AND IT IS ORDERED, that the foregoing deemed good service.

orders shall take effect from and after the

last day of this present Trinity Term, and that 2.-Times of opening and shutting the king's

the same be entered with the registrar, and Remembrancer's Office.

that copies of the same be put up in the King's AND WHEREAS inconvenience arises from Remembrancer's Office, and the several offices there being great irregularity in the times of of this Court. opening and shutting the King's Reinem (Signed) ABINGER. W. BOLLAND). brancer's Office: IT IS HEREBY ORDERED,

J. Parke. E. H. ALDERSON. that the said Office be kept open from nine o'clock in the morning until half-past four in the afternoon, holidays excepted, from the first

QUESTIONS day of every term until the last day of the sittings of the Court after every term, and at AT THE EXAMINATION. all times when the Court shall be sitting, and

Trinity Term, 1837. at all other times from half past nine o'clock in the forenoon till four o'clock in the afternoon,

COMMON AND STATUTE LAW, AND PRACTICE 3.-Service of Notices of Motions and Peti

OF THE COURTS. tions, and filing of Affidavits.

A defendant having given bail and made AND IT IS ORDERED, that every notice of mo- arrangements with the plaintiff by a cognovit tion, and every petition, whereof notice is without the knowledge of the bail, and obtainneeessary to be given shall be served, and ed additional time for payment; does this all affidavits intended to be read in support affect the bail ? thereof, be filed at least two clear days before A defendant being in custody when he exethe hearing of such motion or petition, unless cutes a cognovit, is any and what additional otherwise specially ordered by the Court; and form necessary? all affidavits intended to be used in opposition Will an affidavit not containing any descripto any motion or petition shall be filed before tion of the deponent or his residence, be they are read in Court.

good?

How many days' notice of trial are necessary 4.-Signature of Defendants to Answers. lin a town cause, and how many in a country

AND IT IS ORDERED, that the defendants cause, and low are the days calculated ? shall not be required to sign each skin of an If a cause be made a remanet, is a new noanswer, but that every answer shall be deemed tice of trial necessary either in town or coun" good and sufficient if the defendants do sign try?

96

Questions at the Trinity Term Examination.

An attorney calling on a witness, but not EQUITY, AND PRACTICE OF THE COURTS, finding him at home, left a copy of the subpæna with his wife. Is this sufficient?

What aid will a Court of Equity give where If I start game in my own land, have I a a party requires a disclosure of facts material right to follow it into the land of my neighbour? in an action?

In an action on the warranty of a horse, Where a trustee has accepted the trust, but would an implied warranty be sulficient to refuses to act, what assistance will the Court inaintain the action? Does a sound price grant? amount to a warranty?

| Where a trustee has been appointed, but has An occupier of two houses under two dif- not accepted the trust or acted, and refuses to ferent landlords, one at a rent certain, the act, what relief will be given ? other without any agreeinent for any specific Where a contract has been obtained by sum. Have the two landlords the like remedy fraud, what relief will a Court of Equity give? for rent? or how do they differ?

How will a Court of Equity relieve against What is a term's notice, and when is it re- an apprehended injury, before a legal right quisite ?

can be enforced ? When must application be made for a new May a plaintiff set down his cause for hesrtrial?

ing without examining witnesses; and if so, When must application be made to set aside can he rely upon any facts not admitted by the an award ?

| answer, or deny any facts that are stated Can parol evidence be in any case received therein ? to explain or alter an agreement in writing? | Where a defendant is not in custody, can a

Can a party change his attorney during an bill be taken pro confesso on motion, without action, and if so, are there any conditions im- setting down the cause ? posed on such change?

How does the practice differ when the de. . Can an attorney or his clerk be bail in an fendant is in custody ? " action, under any and what circumstances ? Can an exception to a master's report be

heard where the subject has not been preCONVEYANCING.

viously submitted to the master, and how Jo the devişee of an estate contracted for. should it be submitted ? but not conveyed to the testator, entitled to a Exceptions being taken to an answer for conveyance from the vendor? And from what insufficiency, what time has the defendant to fund must the purchase money be paid ? determine whether he will submit, before the

Is it necessary to have an agreement in writ- same can be referred to the master. ing on the sale of an estate by auction ?

Exceptions being filed to an answer of a deWhat are the conditions proper to be made fendant, against whom process of contempt as regard the title and conveyance on sale of had issued, what may a plaintiff do on the a freehold estate?

exceptions being submitted to, or the answer “Can a bidder at a public auction retract his reported insufficient, in order to get the bill bidding? and if so, when ?

taken pro confesso? Can the particulars and conditions of an Where a party is apprehensive that bis estate be varied by parol at the sale ?

debtor meditates a departure out of the juris. May a tenancy from year tu year created by

diction, will the Court grant any, and what parol be surrendered by parol ?

aid ? What is a rent charge? and how is it cre Has any, and if any, what alteration been ated ?

recently made in the practice with respect to Where an exchange of lands takes place, the mode of serving a subpæna in any part of what is the consequence of ouster of one of the United Kingdom? the parties from defect of title?

An attachment having issued against a deWhat is the difierence between corporeal fendant for not putting in his answer, and the and incorporeal hereditaments?

defendant not having been taken, what circumWill a covenant for production of title deeds stances must be proved before granting an run with the land, in any and what cases ?

and what cases? order for the Serjeant at Arms? Is a inortgagór bound to give any and what | Must the affidavit last referred to be made notice of a prior inortgage to a second mort- by a particular person, and by whom? hagee? And what consequence, if any, results from the omission?

BANKRUPTCY, AND PRACTICE OF THE Where the husband and wife mortgage the

:

COURTS. leasehold estate of the wife, to whom will the

quity of redemption belong, if the husband What is the difference between a fiat and survive the wife

commission of bankruptcy, and how was a fiat In case the wife be the survivor, to whom authorised? will it belong?

Are any and what members of parliament What covenants should be included in a liable to ibe bankrupt laws; and if so, how mortgage of leasehold houses ?

should they be proceeded against ? 'In wliat form should such mortgage be taken, Are there any steps which an insolvent in order to secure the mortgagee from liability | trader may take to make himself bankrupt? for the rents and covenants in the original What ainount of petitioning creditors' debt Jease?

is necessary, where the docquet iş struck by

Questions at the T. T. Esamination. On Covenants Running with the Land.

97

ESS.

d how?

one creditor, or by two, or by three, or more, I ON COVENANTS RUNNING WITH not being partners ?

THE LAND. Within what time must a docquet be prose. cuted to prevent a second creditor applying for

Sir, a fiat, and how should the second creditor | BELIEVE it is considered as law, that the proceed?

purchaser of property, with the deeds froin a A fint being issued out, but not prosecuted

vendor who has entered into a covenant to within the time prescribed, what is the mode

produce them to other petty purchasers of of proceeding to sue out another fiat?

parts of the original estate, is not bound by What are official assignees ? in what manner

such covenant; and that the only remedy the are they appointed, and what are their duties?

smaller purchasers have, is by action on the coHave the commissioners any, and what con

venant against the original covenantor. trol over the choice of assignees ?

This doctrine, like that established in DumA bankrupt being holder of leasehold pre

por's case,a has long appeared very singular to mises, not beneficial to the estate, are there

me; and further consideration only confirms any and what steps which can be taken by the

| my obtuseness of perception as to its correctassignees to avoid the liabilities of the lease ? On a trader making an assigument of a debt, "v

| Where a party assents to, and accepts a puror of a policy of assurance, to whom should

chase under the circumstances alluded to, he notice of such assignment be given ; and for

is cognisant from the abstract of title, of the wbat reason?

existence of such a covenant, and therefore acAre there any assignments by traders for the

cepts it, with open eyes, subject to such liabi. benefit of their creditors, which are protected

lity. against the Bankrupt Laws; and how?

Is it not bard then, that a minor purchaser How does the property, whether rcal or

of should be set at defiance by such greater one, personal, become vested in the assignees of a

| in case the vendor have not procured his enter. bankrupt?

ing into a fresh covenant with the minor pur. Where goods are seized under an execution

| chaser, and be demurred to on requesting a before an act of bankruptcy, can they be sold

sight of the deeds, or their production in after the bankruptcy to satisfy a judgment ?

Court? for be it remembered, unless a new What is the effect on a partnership where

covenant be entered into, he has no guaone of several partners becomes bankrupt?

rantee for his title beyond his own vendor's What are the remedies against a person im

covenants, and those are all personal, and may properly suing out a fiat?

bc valueless by reason of lapse of time, CRIMINAL LAW.

which may have consumed the assets of the Is forgery in any and what cases punishable covenantor, and he may thus be eventually rewith death

mediless. If the owner of stolen property be unknown, I confess I cannot see why such a covenant can larceny be comunitted ?

should not run with and bind the land in the What, if any, is the distinction between hands of the greater bolder, and thus render grand and petty larceny?

him liable to the minor purchasers to produce Are clerks and servants criminally liable for his deeds anterior to their purchase deeds. not duly accounting for monies received ?

It could not prejudice his title more than at State the definitions of murder, manslaughter, the time he ratified his contract by the compleand homicide ?

tion of his purchase, for he is then supposed to Can one or more magistrates admit persons have approved the title as a marketable one. accused of any of these offences to bail? I wou

| I would by no means have the original vendor What other means, if any, are there of being released from his covenant on his parting with admitted to bail; and what steps should be the deeds, but would have the rule laid down taken ?

that he should not be sued on his covenant so How does excusable differ from justifiable long as he could show that the deeds were in homicide?

the custody or keeping of any of his major How are accessaries in inurder before or assigns ; because when he could shew their exafter the fact proceeded against, and what are istence, the remedy of a minor purchaser is the punishments ?

clear and easy by a bill in Chancery, for it is May a person be taken without a warrant the deeds he wants and only them, and only who is found trespassing after dark in the damage consequent on their loss or destruction grounds of another, and destroying game? | should be chargeable on the original vendor.

Cap one justice commit for such offence? It is true enough to reply; “But the original

Who is liable for the expense of keeping vendor never parts with the deeds without bridges over high roads in repair, and are there having a covenant to indemnify and guarantee any and what exceptions ?

their production, still he is the party to attend to What is the punishment for compounding all calls of the minor purchasers, which ought informations on penal statutes?

not to be, seeing that the deeds are in the hands On an appeal against an order of removal byl of another party with the estate." I say this is magistrates under the poor laws, what notice is all true, but it is far from being proper : and necessary?

the course of modern practice proves it : for Is there any and what other notice necessary upon the appeal ?

a 4 Coke, 119.

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