The rent-charge is to be considered as charged upon, and issuing out of, the particular lands in respect of which it is apportioned; and is to be payable by two half-yearly payments, on the 1st July and 1st January, to the lord of the manor mentioned in the schedule of apportionment. (Sects. 31, 36).

If the lord has only an estate for life, or other limited interest in the manor, that circumstance is to be taken into consideration for the purpose of determining whether the whole, or what portion of the rent-charge is to be paid to him, with a due regard to the rights of the persons entitled in remainder. (Sect. 28).

3. Subject of the Commutation. The manorial rights, which may be the subject of a compulsory commutation, are, as already mentioned, rents, reliefs, and services, except service at the lord's court; fines, heriots, and pecuniary compositions for heriots; the lord's rights in timber; and, if expressly mentioned in the agreement, his rights in mines and minerals. (Sect. 13).

Any other rights cannot be comprehended in a compulsory commutation, as such; but they may be inserted in the commutation, with the consent of all persons interested, or may be made the subject of a voluntary supplemental commutation. (Sect. 82).

To meet the case of the death of the lord in the middle of a half-year, the provisions of the act for the apportionment of rents, (4 & 5 Will. 4, c. 22), are ex-mutation, may be rights in respect of any lands holden tended to the rent-charges under this act, rendering payable to his personal representative a proportionable part of the annual sum for so much of the current halfyear as shall have then elapsed. (Sect. 50).

The rent-charge, if paid by the occupier, is to be deducted from his rent in account with his landlord. (Sect. 45). If, however, the proposed rent-charge exeeed the amount of the rent paid by the occupier, the lands may, on his representation to the commissioners, be exempted from the provisions of the act, unless the tenant on the court-roll give security for payment satisfactory to the occupier and the commissioners. (Sect. 46). The rent-charge, if in arrear, is to be recoverable by distress and entry, and perception of the rents and profits, in the same manner as the tithe commutation rentcharge. (Sects. 47, 48, 49).

When the commutation is for a rent-charge, it is to be accompanied by a small fine of a fixed amount, not exceeding 5s., which will remain as a badge of the tenure, and be payable on death or alienation, in respect of each tenement. (Sects. 14, 28).

And these rights, which may be the subject of comof the manor, either by copy of court roll, or by the custom of the manor, or in ancient demesne, or subject to any manorial rights; and, whether held in fee, or for lives, or for years. (Sect. 102).

4. Effect of the Commutation.

The effect of the commutation will be, that the lands will thenceforth be discharged from the rights abovementioned-the lands either within the whole manor, or the particular portion of a manor, when divided by the commissioners; and the lands, not only of tenants who are parties, but also of those who are not parties to the agreement. And, in lieu of such commuted rights, the rent-charge, or the fine, apportioned in respect of each tenement, will, in future, become payable.

The lands will, however, after the commutation, remain parcel of the manor, and continue to be held by copy of court roll, and to be conveyed by surrender and admittance, or otherwise, as before the commutation. (Sect. 79). But they will cease to be subject to customs of borough English and gavelkind, or to any other customary mode of descent, or to any custom relating to dower or freebench, or tenancy by the curtesy; and will thenceforward become subject to the laws of descents, dower, and curtesy, affecting freehold lands; saving the custom of gavelkind in Kent; and saving also, in the case of curtesy, dower, or freebench, the rights of any husband or widow, married before the widow of any person who shall be tenant of the manor at that time. (Ib.)

Fine. The commutation may also be in consideration of a fine payable in respect of the several lands. Its amount may either be fixed by the original agreement, or left, subject to increase or diminution by the valuers, after a certain rate. And it is to be valued in bushels of wheat, barley, and oats, in the same manner as the rent-charge; and variable according to the prices of grain ascertained by the seven years' average pub-confirmation of the commutation, or of the husband or lished next preceding the time of payment. (Sects. 15, 36).

It may be made payable either on the death or alienation of the tenant, or at some certain periods fixed by 5. Expenses of the Commutation. the agreement. (Sect. 15). And it is to be payable to The expenses of the proceedings for effecting the comthe lord of the manor mentioned in the schedule of ap-mutation are to be paid by the tenants, or the tenants portionment. (Sects. 31, 36). and the lord of the manor, as the parties shall provide in the agreement, subject to the approbation of the commissioners, (sect. 14), or as the commissioners shall direct. (Sect. 65). But if no such provision or direction be made, the expenses will be payable, either by the tenants alone, or by the lord and tenants; and in such proportions between them, as is directed by the 30th section of the act.

The lord is to have the same remedies for the recovery of the commutation fines, as he now possesses by law for the recovery of fines on death or alienation; (Sect. 36); and, in addition, he is empowered to pursue the like remedies as are authorized for the recovery of fines payable on the admittance of infants, femes covert, and lunatics, under the 11 Geo. 4 & 1 Will. 4, c. 65, s. 3. (Sect. 53).

The mode of commutation for a fine is not so extensively applicable, nor is likely to be so frequently adopted, as that of commutation for a rent-charge. But, in the case of copyholds for lives, to which it is more particularly adapted, it would have the advantage of substituting a determinate payment that may be provided for with certainty, and variable only with the prices of agricultural produce, for an arbitrary and fluctuating impost that operates most injuriously as a check upon improvement.

The one kind of commutation may be substituted for the other by a supplemental agreement; and the payments of either class may be increased, or the one introduced in addition to the other, by a supplemental commutation of manorial rights not included in the original commutation. (Sect. 54).

The valuers, if so instructed by the commissioners, are to apportion the expenses amongst individual parties. (Sect. 28). And any dispute, as the amount or incidence of the expenses, is to be decided by the commissioners, (sects. 30, 65), who are to certify under their hands the amount to be paid by any person. And, if not paid accordingly, they may be recovered by distress, (sect. 65), or, upon failure of that remedy, by action at law against the party liable. (Sect. 66).

We have already seen, that the person admitted on the court rolls is the tenant who is to be dealt with under the act. And, if he be not himself beneficially interested, he is empowered to recover, by distress or action, against the equitable owner, any expenses with which he may be charged, in respect of the lands of which he is the legal tenant. (Sect. 67). Or, if paid by the occupier, they may be deducted from his rent,

Besides the commutations compulsory on the minority of the parties interested, the act provides also for commutations of another kind, which we have distinguished by the denomination of voluntary commutations. These are voluntary on the part of all persons immediately interested, and are binding only on such of them as actually become parties to the transaction. But they tionment, and a schedule of apportionment prepared by Besides an agreement comprising a schedule of appormay be effected by parties having only a particular the stewards, the act provides, that the form of the inestate, or a limited interest, either in the manor or instrument by which the commutation is effected, may, the copyholds; and will be binding on the persons en- with the consent of the commissioners, be either that titled in remainder or reversion, if notice be given to of a conveyance, such as might be employed for the such persons in certain cases where it is required. purpose if the lord were seised in fee, or that of an (Sect. 52). agreement entered on the court rolls of the manor, with a copy thereof delivered to the tenant. (Sect. 52). to a commutation by a single tenant, or a small number The two latter forms seem more particularly adapted

of tenants with common or connected interests. The With regard to the mode of proceeding, the agree-ance, that the former is exempted from stamp duty, as agreement has this advantage over a deed of conveyments for these voluntary commutations, may, for pur- also is a schedule of apportionment. (Sect. 93). poses of practical convenience, be described as of three kinds:

enacts, that the enfranchised lands shall be held under the copyhold title," and shall not be subject to any estates rights, titles, interests, or incumbrances affecting the manor." (Sect. 64).

We have said, that the enfranchisements contemplated by the act are altogether voluntary on the part of the persons who effect them. But the method of proceeding in the enfranchisement, and the instruments by which it is carried into effect, approximate closely to those employed in compulsory commutations, if the enfranchisement in hand is of a certain comprehension and extent.

ment of the apportioned sums, which will be a sufficient discharge to the parties making the payment. (Sect. 78).

After the completion of the enfranchisement, either by the confirmation of the apportionment, or the execution of the conveyance, as the case may be, the lands enfranchised will become in all respects of freehold tenure, saving, nevertheless, to the tenant, his rights of common, and so as not to affect any limitations by settlement or will, to which they may be subject, nor any mortgages, which will become mortgages for a corresponding estate of the freehold, except that the charge on the lands for the consideration money is to rank as a first mortgage, (Sects. 70, 71, 72), to the priority of which the mortgages previously existing will be sub

For, if the tenants who are parties to an enfranchisement be less than twelve, not being all the tenants of the manor, the enfranchisement is to be effected by such a deed of conveyance as might be adopted for the pur-ject. (Sect. 81). pose, if the lord were seised in fee, (s. 57); and such an instrument would be liable to stamp duty in respect of the interest of each tenant.

But, if the tenants who are parties to the enfranchisement amount to twelve or more, or, being less than twelve, are all the tenants of the manor, the enfranchisement may be effected by a schedule of apportionment, resembling that used in commutations. This schedule may either be the subject of specific agreement between the lord or tenants, or, if it be not agreed upon between them, it is to be prepared by the steward of the manor. (Sect. 56).

In this case, therefore, the instrument of enfranchisement will take one or other of the following forms:

We may observe, in conclusion, that, in proceeding either with a commutation or enfranchisement, a party under a legal disability, having no constituted legal representative, may act by a person appointed by the commissioners. (Sect. 11). And when either the lord or tenant is under a disability, or has only a limited interest, it will become the duty of the commissioners to protect the interests of the expectant or reversionary proprietors; and, in such cases, before confirming the commutation or enfranchisement, the commissioners will require information, both of the value of the property, and the nature of the incidents to which it is subject; and, for that purpose, will require certain returns, (blank forms of which have been issued by the com

I. An agreement embodying, or referring to, an an-missioners), to be made to them by the steward and a nexed schedule of apportionment.

II. A schedule of apportionment alone, as agreed upon by the parties.

III-1. An agreement for enfranchisement between the lord and tenants, without a schedule. 2. A schedule of apportionment prepared by the steward.

And, whether an agreement combined with a schedule, or a schedule alone, it will be exempt from stamp duty. (Sect. 93).

regularly appointed valuer.

CONSTRUCTION OF THE WILL ACT. (Continued from p, 25).

2. SIGNING AT THE FOOT OR END.

B.

A will being written upon two sides of the same paper, the testator signed his name at the bottom of the first side, and his signature was attested by two witThe apportionment, on the basis of which the sche-nesses. That side of the paper ended with an unfindule is framed, may be made, either by the parties themselves, in their original agreement, or by valuers, to be appointed by them. In the latter case, the whole process of investigation, directed in commutation apportionments, is to be followed as far as it is applicable. (Sect. 56).

Notice of the intended enfranchisement is to be given to the persons entitled in remainder or reversion to the inheritance of the manor or copyhold; and, in case of dissent on the part of such persons, the commissioners have the power of withholding their consent. But, if, upon further inquiry, the commissioners are satisfied that there is no sufficient ground of objection to the enfranchisement, they may, notwithstanding such dissent, allow the enfranchisement to be completed. (Sect. 56). It appears, therefore, that enfranchisements under the act, though voluntary on the part of the persons immediately concerned, may, nevertheless, be compulsory with respect to persons having vested interests in remainder.

ished sentence, and the will concluded on the second side, "dated this 11th of April, 1838;" but there was no signature there. The will was clearly void, as not being signed "at the foot or end thereof," according to the requisitions of the 9th section of the act. (In the Goods of Milward, deceased, 1 Curt. 912). So, likewise, where the testatrix had signed her name in the margin of the will, probate was refused on motion. (In the Goods of Judith Wakeling, 5 Jur. 1164). In some other cases, however, the Prerogative Court has admitted a laxity of interpretation with regard to this requisite, inimical to the purposes therein proposed by the Real Property Commissioners, of putting an end to imperfect and informal testamentary papers. For instance, in a case in the present term, where the will was written on the front sides of two sheets of paper, and the writing covered the paper close down to the end of the second side, so as not to leave room for the signature of the testator and the attestation; and the testator signed his name, and the witnesses subscribed an attestation, at the bottom of the third side, or back of the second sheet; the will was, nevertheless, admitted to probate. (In the Goods of Carver, ante, p. 40). In this case, the will was written on a printed paper of instructions for making wills conformably to the new act; and the court remarked, that such printed papers frequently misled testators.

Besides the apportionment of the sums to be paid by each tenant, the schedule is to contain statements of the periods when they are to be paid, either the whole or part only, or with interest in the meantime, according to the adjustinent of the commissioners; and also of the amount of compensation provided for the steward, and the proportions in which it is to be paid. (Sect. 56). The schedule, if approved of by the commissioners, In another case, where a will concluded thus:is to be confirmed by them under their seal; but they "Signed, &c., by me, the testator, [Testator's signature. cannot make any alterations or amendments in the "In the presence of us, [Witnesses' subscriptions.] schedule without the consent of the parties. (Sect. 56)." And I hereby appoint A. B. and C. D. executors."A copy of the schedule is to be deposited with the the court did not treat the will as void by reason of steward, who is to indorse on it memoranda of the pay- the signature not being at the foot or end; but consi

dered this appointment of executors, written under the knowledged" refers only to a signature when made for signature of the testator, as not forming part of the the testator by another person; but the opinion rewill, and allowed administration with the will annexed ceived in the Prerogative Court, and most generally to pass to the residuary legatee, without the clause ap-entertained in other quarters, is, that the acknowledgpointing the executors, upon their consent. (In the ment by the testator of his own signature, as well as of Goods of Howell, deceased, 2 Curt. 342; S. P., In the the signature made by some other person in his preGoods of Warden, deceased, 2 Curt. 335). Again, sence and by his direction, is sufficient, if attested as where a will concluded with the following attestation required by the act. (In the Goods of Regan, 1 Curt. clause, in the handwriting of the testatrix:908). So, likewise, in a case already cited, (In the "Signed and sealed as and for the will of me, Eliza- Goods of Woodington, ubi sup.), where the testatrix, beth Woodington, in the presence of us. having written the will herself, wrote her name in the attestation clause, (which was held to be a sufficient signature), and in the presence of the witnesses acknowledged the will to be her will, and to have been written by her, it was held that this was a sufficient acknowledgment of the signature.

"[Witnesses.]" Sir Herbert Jenner observed: "The deceased, by placing her name where it stands, seems to have intended that it should answer the purpose of a description, as well as of a signature; and such signature being at the foot or end of the will, and the will being written by the deceased, and acknowledged by her to be her will, in the presence of two subscribing witnesses, I think this is a sufficient acknowledgment of the signature to satisfy the provisions of the statute." (In the Goods of Woodington, deccased, 2 Curt. 324).

3. SIGNING WITH A MARK.

The stat. 1 Vict. c. 26, s. 9, does not say that the name of the testator shall appear at the foot of the will, and signing with a mark was considered a sufficient signing under the Statute of Frauds, even where the person was able to write. (Taylor v. Dening, 3 Nev. & P. 228; S. C., nom., Baker v. Dening, 8 Adol. & Ell. 94). Accordingly, In the Goods of Bryce, deceased, (2 Curt. 325), where the will was signed by a mark, without the name of the testatrix appearing in any part of the instrument; and the manner of signature was sufficiently accounted for by affidavit, the testatrix being ill at the time, and the paper was identified as being the will of the deceased, it was held, that this was a sufficient signing within the Will Act.

4. SIGNING BY ANOTHER FOR THE TESTATOR. The statute allows a will to be signed for the testator by another person; but it does not say that the signature must be in the testator's name. And where a testator, who was too ill to sign his will, requested another person to sign it for him, which he did, not in the name of the testator, but in his own name, the court inclined to the opinion that this was a sufficient compliance with the act. (In the Goods of Clark, deceased, 2 Curt. 329). However, the most correct and safest course appears to be for the amanuensis to sign the testator's name, with a mention in the conclusion of the will, that he did so in the presence and by the direction of the testator.

The words, 66 or acknowledged by the testator," are not in the Statute of Frauds; but, according to the construction put by the courts upon that part of the Statute of Frauds which required the will" to be attested" by witnesses, it was not necessary for the witnesses to see the testator actually sign, but it was enough if he acknowledged his signature before them; and in some modern cases the courts have gone further still, and have held, that any recognition by the testator of the instrument as his act, or even a simple request to witness it, was sufficient for the purpose. The Will Act, on the contrary, expressly enacts, that the signawitnesses; and, therefore, it would seem, that the acts ture, if not made, should be acknowledged before the which were accepted as equivalents or substitutes for the acknowledgment of signature, imported by construction only into the Statute of Frauds, can hardly, the form expressly required by the new act. In the in strict propriety, be admitted to supply the place of following case, however, the Prerogative Court seems to have applied the rule, furnished by the old cases, to a case falling within the present law.

A testatrix having signed her will, and, on a subsequent day, sent for two persons to attest it; upon their arrival, they said, they were come, as she requested, for the purpose of signing their names as witnesses to her will, which was then produced, to which the testatrix replied: "I am very glad of it, thank God!" and they then subscribed the will. Dr. Addams submitted, that this was a virtual acknowledgment of her signature by the deceased. The act does not expressly require a direct acknowledgment. Suppose a person wrote his will on a sheet of paper, and signed it, and sent for two witnesses, and said: "there is my will, attest it;" would not that be sufficient? Is not the present case, In a recent case before the Prerogative Court, it hap-in effect, the same? He cited Bythewood's Conveypened, that the person who signed the testator's name, at his request, was one of the witnesses who attested the execution of the instrument. Upon this, Sir Herbert Jenner observed: "All that the act requires is, that the will shall be signed by the testator, or by some person for him, in the presence of two witnesses, who shall attest the same; there is nothing which prevents the person making the signature for the testator being one of the witnesses to attest and subscribe the will;" and was of opinion, that this was a good execution under the act. In the Goods of Bailey, 1 Curt. 914). We must, with all submission, beg leave to question the soundness of this decision; for, as a learned commentator upon the act has remarked, (H. Sugden, Law of Wills, 38), "it could not be the intention of the legislature to require the testator to acknowledge the signature of his will by another person, to the very person who had signed it for him." But there seems to be no objection to the amanuensis being a legatee or devisee

under the will.

5. ACKNOWLEDGMENT OF THE SIGNATURE.

ancing, [qu. Powell on Devises], by Jarman, Vol. 1, P. 75; and the court being of opinion, that, under the circumstances, the signature was sufficiently acknowledged by the testatrix, under the 9th section of the stat. 1 Vict. c. 26, allowed administration with the will annexed to pass. (In the Goods of Warden, deceased, 2 Curt. 334).

But this case is quite irreconcilable with another before the same court, hardly distinguishable in its circumstances, where the court did not refer to the rule of the old authorities, which we have given our reasons for thinking inapplicable, but proceeded simply upon a faithful and rigorous observance of the express words of the act. In the case we allude to, all the deceased did was to request the witnesses to sign their names to the paper, without saying that it was a will, or that the signature was hers; and it was held, that this was not a sufficient compliance with the act. (In the Goods of Rawlins, deceased, 2 Curt. 326; S. P. In the Goods of Mary Harrison, 5 Jur. 1017).

(To be continued).

Correspondence.

TO THE EDITOR OF THE JURIST*.

Sir,-You will greatly oblige me by publishing in your valuable work, the following communication.

Yours, very faithfully, T. STARKIE.

watched him in the conduct of a cause, without admiring the fertility of his mind in suggesting new and unexpected points of argument. We may add, that the moral qualities of Mr. Jacob, no less than his intellectual ability, commanded admiration. He was, of all men, the most scrupulous and conscientious in the discharge of his duty to his client. No prospect of emoluMy attention has been drawn to an uncandid and unment ever induced him to undertake business which he fair article in the last number of the Law Magazine, could not transact in his own person; nor would the which professes to be a criticism on my forthcoming inconvenience of length of time induce him to forego a edition of the Law of Evidence. It is uncandid, be-discussion which he believed to be advantageous to his cause it imputes the omission of many cases, which have been published whilst the work has been going through the press, and which could not be systematically arranged, except by means of an appendix; advantage is thus taken of the publication of part of the work previous to the Appendix, for charging the negligent omission of cases, which could not be inserted in the body of the work. Unfair, because the writer untruly alleges the omission of several cases which are actually

contained in the work.

humour, his careful abstinence from irritating and ancause. By his amenity of disposition, his uniform good 5y remarks, his readiness to impart assistance and adcame in contact, he established, amongst the profession, vice, and his universal courtesy to all with whom he such feelings of respect and friendship as created universal regret on his retirement, and the deepest sorrow at his melancholy end. He was the person whose early promotion to the bench, in one of the courts of equity, has It is very far from my intention to enter into any the court, but also by the leading conveyancers. He long been desired, not merely by counsel practising in discussion with the writer of this article, but, to the profession some explanation is due. Owing to the great the doctrines of the law of real property upon a diswas regarded as, of all men, the most capable of securing accumulation of authorities and statutes relating to the subject, subsequently to the last preceding edition, and tinct and satisfactory basis. He was possessed of a peculiarly judicial mind, able to weigh arguments one also to my own professional engagements, the present edition has been in the press between two and three against another; and, by the strength of his memory, and the clearness of his intellect, to survey all the ciryears, a period much longer than I had anticipated; cumstances of a complicated case, spread forth as in a map and, consequently, numerous authorities published dur-before him. But, it has pleased Providence to close his ing the printing of the work have necessarily been reserved for the Appendix, in which they are already arranged under the same heads, in the same order, and with constant reference to the very pages of the original text—a course adopted in the second edition. I hope, that this course will not be of serious inconvenience to any one who may be disposed to consult the book; and trust, that the profession will suspend their judgment on the work, until the whole shall have been submitted to their consideration.

Emperial Parliament.

HOUSE OF COMMONS.
Thursday, Feb. 3.

Sir T. Freemantle gave notice of motion, for the 8th instant, on behalf of the President of the Board of Trade, for leave to bring in a Bill to amend and consolidate the Laws relating to the Trade of the British Possessions in the Colonies. Also, on behalf of the Chancellor of the Duchy of Lancaster, for the 17th instant, for leave to bring in a Bill for the better Provision of effectually inspecting all Houses, licensed by the Magistrates at Sessions, for the Reception of Insane Persons in England and Wales.

THE LATE MR. JACOB.

(From the Law Magazine).

He was a man who had accumulated a vast extent of knowledge; and he had the power of recalling, at a moment's notice, any portion of his learning which happened to be required for immediate use. Few men have possessed the faculty of arguing more strongly, or more acutely. He appeared to have peculiar pleasure in the thorough investigation of legal doctrines; and, by the careful consideration of common and statute law, of judicial decisions, and of general reasoning, he was continually aiming at the discovery and establishment of clear and definite legal opinions. Few lawyers met him in consultation without gaining instruction; or * As the Law Magazine is published only at intervals of three months, we think that Mr. Starkie is entitled to this portunity of making an immediate reply to the attack upon his work. We shall take an early opportunity of expressing our own opinion on the new edition.

op

threshold of that office for which he had exhibited pecareer at the moment when he was approaching the culiar fitness. Lawyers will mourn over one whom they would have addressed with confidence and respect; and the country has reason to lament a man of vast attainment and strict integrity, who, had his life been spared, would have rendered great public services in a responsible and exalted station.

EQUITY SITTINGS, AFTER HIL. TERM, 1842.