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Eminent Conveyancers.—Agreement to wit/ujraw an Opposition to a Bill in Parliament. 03 94 Agreement to withdraw an Opposition to a Bill in Parliament.—P^efty Lawyer.
Remainders and Executory Devises, published in 1772. It then consisted of only 98 pages. Subsequent editions were greatly enlarged. The fourth edition of that part of the work which relates to contingent remainders was published by Mr. Fearne in 1791. together wilh the opinions of Mr. Booth, Lord Mansfield, and other eminent counsel, on the will which was tlie subject of the case of Perrin v. Blake, and a prefatory address to his Lordship, lie lived only to complete a few pages of that portion of the work which treats of executory devises: these, with the remainder of the work as it stood in the third edition, were edited by Mr. Powell, 1795, wilh copious notes. An improved edition, with notes and appendix, was published by Mr. Butler in ISO!). After Mr. Fearne's death, Mr. Mitchell Shadwell selected from his friend's manuscripts a Reading on the Statute of Inrolnients, arguments on the singular case of General Stanwix, and a collection of his professional opinions; and published them in 1797, under the title of his posthumous works.
"Mr. Powell, whom I have just named, was himself a conveyancer of no mean repute. To him belongs the merit of having first given a systematic exposition of the subtle doctrine of powers, since so admirably treated of by Sir E. Sugden. This work appeared in 178/. Mr. PoweU had previously published, in 1785, a ▼cry useful essay on mortgages; but his earliest work was on the learning of devises, in 1783, since edited by Mr. Jarman with distinguished ability. Mr. Powell also published an essay on the law of contracts and agreements, in 1790. A collection of his precedents was edited by Mr. Barton, in 1803. Mr. Barton was himself the author of several works on conveyancing; and, in 1803, published a considerable collection of precedents. With the exception of Williams's precedents in conveyancing, in 1792, no other collection of any consequence appeared uutil Mr. Bythewood's, in 1821. The editor lived to finish only a very small portion of his extensive design, since completed by Mr. Jarman, and byMessrs. Parken & Stewart.
"A new school of conveyancing is considered to have been formed by Charles Butler, who, having raised himself to the head of this branch of the profession, continued during many years to hold that conspicuous station almost without a rival. Eminently successful as a draftsman, he did much by the influence of his example to prune that prolixity in conveyancing which some of his distinguished predecessors had introduced. Greater conciseness, however, he considered to be hardly attainable without abandoning established forms and language so much as to render the innovation a matter of experiment—always hazardous, and never more so than when legal instruments are concerned. His annotations on Lord Coke's first Institute, published in 1787, in continuation of those of Mr. Hargrave, though deservedly esteemed, were confessedly too hastily prepared to reach the high standard •f his predecessor; who to great patience of
research, united an acuteness and discrimination which admirably fitted him for such ;\ task. Of Mr. Butler's numerous literary vyorks, which are chiefly of nn historical and religious cast, it would be irrelevant here to speak. His knowledge appears to have been more various than profound.
"In this catalogue of conveyancers it would be unjust to omit the names of Francis Sanders, author of a learned treatise on uses and trusts, published in 1791, and James Humphreys, whose luminous work on real property, which appeared in 1826, is of distinguished merit. As a compcud, concise yet clear, it is unrivalled. His outlines of a code, whatever may be thought of the abstract question, bespeaks a mind conversant with the details of practice, and yet above them; capable, ns Bacon says, 'of casting his eyes upon some things which the actors themselves, especially some being interested, some led-and addicted, some declared and engaged, did not or would not see.' The publication of Mr. Humphrey's book called forth the contre-projet of the late John James Purk, in 1828. Park was, as he avowed himself, 'a self educated man;' and this, combined with his sedentary way of life, will perhaps account for those literary heresies which so often disfigured his writings. He was, in the best sense of the word, a free thinker. This character is as conspicuous in his professional opinions as in his printed works. 'As a lawyer, Professor Park deservedly ranked high—he was not unworthy of the master under whom he studied (Mr. Preston); and one cannot but regret that his promissing career should have been so soon cut short; that, when about to reap the harvest of his hopes, the sickle should have fallen from, his hand."
AGREEMENT TO WITHDRAW AN OPPOSITION TO A BILL IN PARLIAMENT.
A Question of considerable interest to the public at the present moment, has been discussed in several recent cases—how far it is lawful to withdraw an opposition to a bill in Parliament for a pecuniary consideration, and whether an agreement for this purpose can be enforced.
In the case of The Vaxixhall Comp. v. Earl Spencer and others * it was held by Sir T. Plumer, V. C. that securities given in consideration of withdrawing an opposition to a bill in Parliament were, on grounds of public policy, illegal; andon a bill to have such securities delivered up, and stock, &c. transferred to plaintiffs, a demurrer being put in, the same was overruled but this judgment was reversed by Lord El dun, C.,b who thus
■» 2 Madd 356. <> Jacob. 64.
gave his opinion :—** There was a proposition to build this bridge at Vauxhall; the proprietors at Battersea bridge objected, as their tolls would be diminished; and no one can say that there was any thing fraudulent in their doing what they could to prevent the completion of this object of building another bridge near theirs. It seems that it was first agreed that some remuneration should be given them, which was to be secured to them by the Act, but they were frightened by something that fell from some member of the committee, and imagined that scruples would be entertained about it. They then determined not to ask anything in the Act; but they say if you will secure to us an adequate remuneration in another way, we will agree to make no opposition to your bill. It is argued that this was a fraud on the legislature; but I think it would be going a great way to say so, for non constat if it had been pushed to the extent of taking the opinion of the House, that it might not have passed the bill in its former shape. It cannot be said that the agreement is contrary to legislative policy, because one member of the committee makes an objection which is not sanctioned or known by the House at large."
The doctrine laid down by Lord Eldon has been followed by the present Chancellor in the recent case of Edwards v. Grand Junction Railway Company.,• In that case a person acting on behalf of the subscribers to a railway, who were then soliciting a bill in Parliament for the purpose of forming them into an incorporated 'joint stock company, entered into a contract with the trustees of a road, whereby it was stipulated that in consideration of the trustees withdrawing their opposition in Parliament, and consenting to forego certain clauses of which they had intended to press for the insertion in the Act, the bill was allowed to pass unopposed, and without the clauses. An injunction was granted at the suit of the trustees to prevent the company from violating the provisions contained in the omitted clauses, and it was held that an agreement to withdraw or withhold opposition to a bill in Parliament was not illegal; and that a court of equity would enforce a contract founded on such a consideration.
But in the late case of Simpson v. Lord Howden, first reported by our own reporter,<1 and recently by Mr. Keen,e where there was an agreement between Lord Howden, a Peer
of Parliament, and the proprietors of the shares in a projected railway, it was stipulated on the one hand that Lord Howden should withdraw his opposition to a bill in Parliament for establishing the railway according to a certain line; and, on the other hand, that the proprietors, on the bill passing, should pay certain sums to Lord Howden by way of compensation for the injury his land would sustain, and use their best endeavours to procure a deviation from the original line in the next session of Parliament. After the bill for establishing the railway had passed, the proprietors filed a bill to have the agreement delivered up to be cancelled, as being contrary to public policy, and therefore void. A general demurrer for want of equity was overruled by Lord Langdak, M. R. In the argument and judgment great stress was laid on the circumstance of Lord Howden being a Peer, and that his public and private duties were brought into conflict; but his Lordship seemed to think that, independent of this fact, the contract was illegal, and could not be enforced.
It would seem, therefore, that it is not clear that an agreement to withdraw an opposition to a bill in Parliament for a pecuniary consideration is valid, or can be enforced in equity.
THE PROPERTY LAWYER,
Bv the Insolvent Debtors' Act, (7 G. 4, c. 57.) s. 30, it is enacted, that if uny prisoner shall at the time of his arrest have in his possession, order, or disposition, any goods or chattels whereof such prisoner Mas reputed owner, or whereof he had the sale or disposition at owner, the same shall be deemed to be the property of the prisoner, so as to become vested in bis assignee.
Where an insolvent had married and lived with a woman, he having a former wife living, a question arose whether the goods of the woman passed to his assignee under the above section of the act. An action having been brought by her against her supposed husbaud's assignees, Tintlal, C. J., said, "it was quite clear that if the plaintiff believed himself to be married, this case would not be within the statute, because she could not he said to be consenting to another person's holding her property, when the right in which he held was that of a husband; and he left the question to the jury, whether she at any time found out the fact of the former marriage, and after that allowed Waterman, (the man who had married her,) to exhibit himsclfas theowner of any of the goods: for such goods as she did allow him to appear the owner of, after such discovery, they were to find for the defendant;
Neiv Orders of the Court of Equity Exchequer. — Questions at the T. T. Examination. 95 Questions at the Trinity Term Examination.
but for such goods as were not held by him after the discovery, they ought to find for the plaintiff." Miller v. Demetz, 1 Moo. & Rob. 4/9.
NEW ORDERS OF THE COURT OF EQUITY EXCHEQUER.
GENERAL ORDERS IN BQU1TT.
1. —Setting down Causes and service of Subpoena* ad audiendum judicium.
Causes may be tet down, and Subpoenas served, and made returnable on any day out of term as well as in term.
Whereas the present practice, that causes can only be entered for hearing on the seal day of every term, and that the subpoena ad audiendum judicium can only he returnable in term time, is productive of delay and inconvenience: The Court Doth Order, That from and after the last day of the present Trinity Term causes may be set down for hearing, and the subpoena ad audiendum judicium he served, and made returnable on any day as well out of terra as in term, but every such subpama is to be served, in a country cause, fourteen days, and in a town cause, ten days before the same is made returnable. And It Is Ordered, that service on the Clerk in Court for any party of a subpama ad audiendum judicium shall be deemed good service.
2. —Times of opening and shutting theKing's
And Whereas inconvenience arises from there being j-reat irregularity in the times of opening and shutting the King's Remembrancer's Office: It Is Hereby Ordered, th.it the said Office be kept open from niue o'clock in the morning until half-past four in the afternoon, holidays excepted, from the first day of every term until the last day of the sittings of the Court after every term, and at all times when the Court shall be sitting, and at all other times from half past nine o'clock in the forenoon till four o'clock in the afternoon.
3. —Service of Notices of Motions and Peti
tions, and filing of Affidavits.
And It Is Ordered, that every notice of motion, and every petition, whereof notice is neeessary to be given shrill be served, and all affidavits intended to be read in support thereof, be filed at least two clear days before the hearing of such motion or petition, unless otherwise specially ordered by the Court; and all affidavits intended to be used in opposition to any motion or petition shall be filed before they are read in Court.
4. —Signature of Defendants to Answers.
And It Is Ordered, that the defendants shall not be required to sign each skin of an answer, but that every answer shall be deemed good and sufficient if the defendants do sign
the last skin thereof, and the last skin of the schedule or schedules thereto.
5.—Caption of Answers to Marksmen.
And It Is Ordered, that it shall be deemed sufficient if the caption of the answer of every defendant who is unable to write his or her name, and which shall be taken before Commissioners in the country, slates that the answer purporting to be sworn to by the defendant was read over to such defendant, who appeared perfectly to understand the same, and made his or her mark thereto, in the presence of the Commissioners before whom such answer was sworn, without requiring an affidavit of the answer having been so read over.
6.—Copies to be delivered to the Court in
And It Is Ordered, in all cases of pleas, demurrers, and exceptions to answers as to masters' reports of scandal or impertinence, copies of the bill, plea, or demurrer, answer, and exceptions, and masters' report, be delivered by the party who sets down the same at the chambers of the Judge before whom the argument is to come on, one clear day at least before the day appointed for such argument; but in cases of scandal or impertinence the same copies are to be delivered to the Judge as were laid before the master on the reference.
And It Is Ordered, that the foregoing orders shall take effect from and after the last day of this present Trinity Term, and that the same be entered with the registrar, and that copies of the same be put up in the King's Remembrancer's Office, and the several offices of this <-'ourt.
(Signed) Abinoer. W. Bolland.
J. Parke. E. H. Alderson.
Common And Statute Law, And Practice OF The Courts.
A defendant having given bail and made arrangements with the plaintiff by a cognovit without the knowledge of the bail, and obtained additional time for payment; does this affect the bail?
A defendant being in custody when he executes a cognovit, is any and what additional form necessary?
Will an affidavit not containing any description of the deponent or his residence, be good?
How many days' notice of trial are necessary in a town cause, and how many in a country cause, and how are the days calculated?
If a cause be made a rcmanct, is a new notice of trial necessary either in town or country?
An attorney calling on a witness, but not finding him at home, left a copy of the subpaena with his wife. Is this sufficient?
If I start game in my own land, have I a right to follow it into the land of my neighbour?
In an action on the warranty of a hor.-e, would an implied warranty be sufficient to maintain the action? Does a sound price amount to a warranty?
An occupier of two houses under two different landlords, one at a rent certain, the other Without any agreement for any specific sum. Have the two landlords the like remedy lor rent? or how do they differ?
What is a term's notice, and when is it requisite?
When must application be made for a new trial?
When must application be made to set aside an award?
Can parol evidence be in any case received to explain or alter an agreement in writing?
Can a party chauge his attorney during an action, and if so, are there any conditions imposed on such change?
Can an attorney or his clerk he bail in an action, under any and what circumstances?
Is the devisee of an estate contracted for, but not conveyed to the testator, entitled to a conveyance from the vendor? And from what fund must the purchase money he paid?
Is it necessary to have an agreement in writing on the sale of an estate by auction?
What are the conditions proper to be made as regard the title and conveyance on sale of a freehold estate?
Can a biddet at a public auction retract his bidding? and if so, when?
Can the particulars and conditions of an estate be varied by parol at the sale?
May a tenancy from year to year created by parol be surrendered by parol?
What is a rent charge? and how is it created?
Where an exchange of lands takes place, what is the consequence of ouster of one of the parties from defect of title?
What is the difference between corporeal and incorporeal hereditaments?
Will a covenant for production of title deeds run with the land, in anv and what cases?
Is a mortgagor bound to give any and what notice of a prior mortgage to a second mortgagee? And what consequence, if any, results from the omission?
Where the husband and wife mortgage the leasehold estate of the wife, to whom will the equity of redemption belong, if the husband survive the wife i
In case the wife be the survivor, to whom will it belong?
What covenants should he included in a mortgage of leasehold houses?
In what form should such mortgage be taken, in order to secure the mortgagee from liability for the reuts and covenants in the original Jease?
EQUITY, AND PRACTICE OF THE COfttTS.
What aid will a Court of Equity give where a party requires a disclosure of facts material in an action?
Where a trustee has accepted the trust, but refuses to act, what assistance will the Court grant?
Where a trustee has been appointed, but has not accepted the trust or acted, and refuses to act, what relief will be given?
Where a contract has been obtained by fraud, what relief will a Court of Equity give?
How will a Court of Equity relieve against an apprehended injury, before a legal right can be enforced?
May a plaintiff set down his cause for hearing without examining witnesses; and if so, can he rely upon any facts not admitted by the answer, or deny any facts that are stated therein?
Where a defendant is not in custody, can a bill be taken pro confesso on motion, without setting down the cause?
How does the practice differ when the defendant is in custody?
Can an exception to a master's report be heard where the subject has not been previously submitted to the master, and how should it be submitted?
Exceptions being taken to an answer for insufficiency, what time has the defendant to determine whether he will submit, before the same can be referred to the master.
Exceptions being filed to an answer of a defendant, against whom process of contempt had issued, what may a plaintiff do on the exceptions being submitted to, or the answer reported insufficient, in order to get the bill taken pro confesso?
Where a party is apprehensive that his debtor meditates a departure out of the jurisdiction, will the Court grant any, and what aid?
Has any, and if any, what alteration been recently made in the practice with respect to the mode of serving a subpoena in any part of the United Kingdom?
An attachment having issued against a defendant for not putting in his answer, and the defendant not having been taken, what circumstances must be proved before granting an order for the Serjeant at Arms?
Must the affidavit last referred to be made by a particular person, and by whom i
BANKRUPTCY, AND PRACTICE 0* THE
What is the difference between a fiat and commission of bankruptcy, and how was a fiat authorised?
Are any and what members of parliament liable to the bankrupt laws; and if so, how should they be proceeded against?
Are there any steps which an insolvent trader may take to make himself bankrupt?
What amount of petiliouing creditors' debt is necessary, where the docquet is struck by pne creditor, or by two, or by three, or more, not being partners?
Questions at the T. T. Examination.— On Covenants Running with the Land. 97
Within what time must a docquet be prosecuted to prevent a second creditor applying for a fint, and how should the second creditor proceed?
A fiat being issued out, but not prosecuted within the time prescribed, what is the mode of proceeding to sue out another fiat?
What are official assignees? in what manner are they appointed, and what are their duties?
Have the commissioners any, and what control over the choice of assignees?
A bankrupt being holder of leasehold premises, not beneficial to the estate, are there Idv and what steps which can be taken by the assignees to avoid the liabilities of the lease?
On a trader making an assignment of a debt, or of a policy of assurance, to whom should notice of such assignment be given; and for what reason?
Are there any assignments by traders for the benefit of their creditors, which are protected against the Bankrupt Laws; and how?
How does the property, whether real or personal, become vested in the assignees of a bankrupt?
Where goods are seized under au execution before an act of bankruptcy, can they be sold after the bankruptcy to satisfy a judgment?
What is the effect on a partnership where one of several partners becomes bankrupt?
What are the remedies against a person improperly suing out a fiat?
Is forgery in any and what cases punishable with death?
If the owner of stolen property be unknown, can larceny be committed?
What, if any, is the distinction between grand and petty larceny?
Are clerks and servants criminally liable for not duly accounting for monies received?
State the definitions of murder, manslaughter, and homicide?
Can one or more magistrates admit persons accused of any of these offences to bail?
What other means, if any, are there of being admitted to bail; and what steps should be taken?
How does excusable differ from justifiable homicide?
How are accessaries in murder before or after the fact proceeded against, and what are the punishments?
May a person be taken without a warrant who is found trespassing after dark in the grounds of another, and destroying game?
Can one justice commit for such offence?
Who is liable for the expense of keeping bridges over high roads in repair, and are there any and what exceptions?
What is the punishment for compounding informations on penal statutes?
On an appeal against an order of removal by magistrates under the poor laws, what notice is necessary?
Is there any and what other notice necessary upon the appeal?
ON COVENANTS RUNNING WITH THE LAND.
I Believe it is considered as law, that the purchaser of property, with the deeds from a vendor who has entered into a covenant to produce them to other petty purchasers of parts of the original estate, is not bound by such covenant; and that the only remedy the smaller purchasers have, is by action on the covenant against the original covenantor.
This doctrine, like that established in Dumpor'i caie» has long appeared very singular to me; and further consideration only confirms my ohtuseness of perception as to its correctness.
Where a party assents to, and accepts a purchase under the circumstances alluded to, he is cognisant from the abstract of title, of the existence of such a covenant, and therefore accepts it, with open eyes, subject to such liability.
Is it not bard then, that a minor purchaser should be.set at defiance by such greater one, in case the vendor have not procured his entering into a fresh covenant with the minor purchaser, and be demurred to on requesting a sight of the deeds, or their production in Court? for be it remembered, unless a new covenant be entered into, he has no guarantee for his title beyond his own vendor's covenants, and those are all personal, and may be valueless by reason of lapse of time, which may have consumed the assets of the covenantor, and he may thus be eventually remediless.
I confess I cannot see why such a covenant should not run with and bind the land in the hands of the greater holder, and thus render him liable to the minor purchasers to produce his deeds anterior to their purchase deeds. It could not prejudice his title more than at the time he ratified his contract by the completion of his purchase, for he is then supposed to have approved the title as a marketable one. I would by no means have the original vendor released from his covenant on his parting with the deeds, but would have the rule laid down that he should not be sued on his covenant so long as he could show that the deeds were in the custody or keeping of any of his major assigns ; because when he could shew their existence, the remedy of a minor purchaser is clear and easy by a bill in Chancery, for it is the deeds he wants and only them, and only damage consequent on their loss or destruction should be chargeable on the original vendor.
It is true enough to reply; "But the original vendor never parts with the deeds without having a covenant to indemnify and guarantee their production, still be is the party to attend to all calls of the minor purchasers, which ought not to be, seeing that the deeds are in the hands of another party with the estate." I say this is all true, but it is far from being proper; and the course of modern practice proves it: for