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CONTENTS. Logdon Gazettes..
348 Vice-CHANCELLOR STUART'S COURT-(Continued). Leading Article
349 Briggs o. The Earl of Oxford -Beavan v. The Earl of First Report of the County Courts Commission 352 Oxford.-(Equitable tenant for life-Waste-ReNAMES OF THE CASES REPORTED.
mainderman, lien of, on rents of the tenant for life
- Subsequent incumbrancers COURT OF CHANCERY.
Mortgagor and mortgagee)
817 By T. EDWARDS, Barrister at Law. Vivian o. Cochrane.-(Tithe in cily of London-New
Court oF QUEEN'S BExch. house built by tenant)..
By G. J. P. Smith and W. B. BRETT, Barristers at Law.
Gould v. Webb.-(Action on contract-- Pleas: breach
of stipulation by plaintiff; discharge by foreign
law-Newspaper- Correspondent) The Dover Gas-light Company r. The Mayor, &c. of Dover.-(Local act, 3 Geo. 4, C. xv)
Robinson o. Rutter.-(Goods sold and delivered-
Action by the auctioneer for the price-Plea, pay-
823 By G. Y. Robson, Barrister at Law.
Smith v. Sieveking.-(Charterparty-Bill of ladingIn re The London Dock Company's Act, ex parte
Acceptance of goods ---Demurrage-Liability of Taverner.-(Fines and Recoveries Act, 3 & 4 Will.
824 4, c. 74-Acknowledgment by married woman
Smart o. Morton.-(Obligation of owner of minerals Inrolment)....
to leave support for surface-Deed severing the Mills v. Drewitt. - (Will— Construction-Annuity
surface and the minerals-Reservation of powers Charge upon corpus)
of mining-Compensation for damage--Practice Vice-CHANCELLOR STUART's COURT.
of mining - Pleadiny). By T. F. MORSE, Barrister at Law.
Gardner o. Walsh.-(Joint and several promissory In re Jones's Settled Estates.-(Purchase of land
note-Alteration - Addition of another maker)... 828 Title, reference to conveyancing counsel as to
Henderson v. The Australian Royal Mail Steam Navi.
gation Company.-(Trading corporation- Contract waste-Timber on the estate, value of)..
which constitute the dramatic power seldom co-exist
with the accomplishments of the novelist. Shakespeare LONDON, SEPTEMBER 1, 1855.
borrowed his stories, and Molière did the same
did without one :Fielding and Scott could not write From the past course of law-making as to judgment plays*. The moral of all this is, that we must not charges we may learn with how little effective consi- expect any kind of work to be well done except deration the duty of mending the law is undertaken by those who from their youth have been in the and discharged. A man will shape his mercantile spe- habit of doing it, always taking care to distinguish culations, build his house, even order his coat or his between doing and pretending-in other words, between dinner, with the nicest and most painful regard to the work done in private establishments and the shew every remote consequence to himself that can be fore- made in public offices. If we go to a pleader for pleadcast; and will bestow as much care on his neigh- ings, to a conveyancer for deeds, we must go to a rebour's affairs when he undertakes them professionally, former for bills. But by this advice we are for the time whether for reward or for love. What he then does, rather put back than forwarded. There is no such trade either for himself or for another, will bear to be tried or profession as that of a law reformer, though the name even hy the event, due allowance being made for his is assumed by political and other adventurers—aspirants limited faculties and lights. But set a man to con
even to the woolsack-their practices being what Sir trive and order a new thing for society at large, in E. Herbert, C.J., once described that of the vintner to which neither he nor his employer have the main or be, notran art, but a cheat. Amateurs, who so often, any noticeable direct interest, and his work, when the in following their own pursuits, qualify themselves to means of judging it are ready, will appear like the first do the State yeoman's service, fail us here. The art of attempts of childhood. We feel that Bentham missed amending the law can no more be exercised in private the root of the matter in referring the inferiority of than the forensic or the military arts. We must the work done for the public to the absence of direct create the profession. The State must establish a personal interest. Without vilifying buman nature, department of law reform, making the service a prowe may trace the effect to a more simple and universal vision for life, and an ample and honourable one; cause--the difficulty of doing anything new, to which giving advancement within the office, but no passage all men testify as much by their proneness to observe from it to anything higher. The chief men in the custom and precedent in their own affairs, as by their office must be as independent of government and of high rating of novelty and invention in others' works. parliamentary and popular influence and clamour as the What is most truly new and valuable in a man's own
Astronomer Royal. Above all, they must begin early. work is least esteemed by him, because done with ease But let us return to our sheep. We intended to review by powers whose slow growth he has not noticed, and the whole flock, and to shew, by a comprehensive whose working is familiar. Thus Petrarch, writing sketch of the entire subject of real assets and judgment frigid latin verses with labour and difficulty, prized charges on land, how miserably feeble and inefficient them, while he thought little of the polish and re. the legislative and judicial attempts to solve the profinement he gave to his native language, the matured blem—“how to satisfy the creditor out of his debtor's fruit of that ever-active fastidiousness which in his youth displayed itself in tight boots and other personal
* The Turcaret of Le Sage and Goldsmith's two plays are affectations. So it is seen that the habits of thought I exceptions in the comic drama.
lands”-have hitherto been; but we must defer that to register a judgment there, in accordance with the task to another opportunity, and make amends for the provisions of the 1 & 2 Vict. c. 110, s. 21, though it preforegoing speculations by a practical exposition of vented the judgment from operating under that act as the act of the last session, “for the better protection against purchasers, mortgagees, and creditors, did not of purchasers against judgments, crown debts, cases affect its operation under the Statute of Westminster 2. of lis pendens, and life annuities or rent-charges,” | Whether any remedy in the nature of an elegit could, (18 & 19 Vict. c. 15), which is, on the whole, a bene- before the stat. 1 & 2 Vict. c. 110, be had upon a judgficial, though by no means a comprehensive or well- ment in the Court of Pleas of Durham, which is a drawn, measure.
county palatine by prescription, is more than our sources The first three sections relate to judgments and de- of reference at hand enable us to say. crees of the county palatine courts, as to which, before The object of the first three sections of the new act is the passing of the act, the law stood thus:-By the 21st to place judgments of the palatíne courts on the same section of stat. 1 & 2 Vict. c. 110, all the remedies, footing in these respects with judgments of the courts authorities, and provisions of that act applicable to the at Westminster, and to extend the provisions in the superior courts of common law at Westminster and 1 & 2 Vict. c. 110, and the 2 & 3 Vict. c. 1), as to rules, the judgments and pro lings therein, were extended orders, and decrees for payment of money, and lis penand made applicable to the Court of Common Pleas of dens, to the counties palatine. They enact, in subthe county palatine of Lancaster and the Court of Pleas stanceof the county palatine of Durham, within the limits of 1. That a judgment in a palatine court obtained be their respective jurisdictions; and the same effect was fore the act of 1 & 2 Vict., and not registered there, shall given to the judgments of these courts within their re- not affect lands, as against purchasers, mortgagees, and spective jurisdictions as was given by the act to judg- creditors, unless and until it is registered. (Sect. 1). ments of the common-law courts at Westminster. But 2. That the provisions of the 18th, 19th, and 20th it was provided that no judgment of either of the pala- sections of the 1 & 2 Vict. c. 110, (giving to decrees, tine courts should by virtue of the act affect any lands, orders, and rules for the payment of money the same tenements, or hereditaments, as to purchasers, niort- force as judgments, and providing for the registration gagees, or creditors, unless and until it was registered of them), shall apply, mutatis mutandis, to the counties with the proper officer of the palatine court; in the palatine and the courts of common law thereof respecsame manner as judgments of the courts at West- tively, and the Court of Chancery of Durham, within minster are required to be registered in the Common the limits of their respective jurisdictions. (Sect. 2). Pleas. The stat. 2 & 3 Vict. c. 11, s. 4, which re- 3. That the provisions of the 2 & 3 Vict. c. 11, ss. 3, quired the registry of judgments to be renewed every 4, 5, and 7, and the 3 & 4 Vict. c. 82, s. 2, respecting five years, for the purpose of binding lands as against the registration and re-registration of judgments, decrees, purchasers, mortgagees, and creditors, is not expressed orders, and rules, and lis pendens, and the protection of in such terms as to include judgments of the palatine purchasers, mortgagees, and creditors, shall extend, mucourts; and the 5th section of that act, which declared | tatis mutandis, to the counties palatine and the courts that “none of such judgments, decrees, &c. as afore- of common law thereof respectively, and the Court of said" should have any further or other operation, as Chancery of Durham, within the limits of their respecagainst purchasers and mortgagees without notice, than tive jurisdictions. (Sect. 3). + a judgment duly docketed would have had before the The provision of the 3 & 4 Victy c. 82, s. 2, that no stat. 1 & 2 Vict. c. 110, seems to be equally inapplicable judgment not registered should, by virtue of the act 1 & 2 to judgments of the palatine courts. The 2nd section Vict.c.110,affeet lands as against purchasers with notice, of the 3 & 4 Vict. C. 82, which was directed against left it open to question whether judgments not docdoubts founded on the strange decisions as to the effect ketted nor registered might not affect lands under the of notice under the Docket Acts, and declares that no Statute of Westminster 2, as against purchasers and unregistered judgment, &c. shall, by virtue of the 1 & mortgagees with notice, although judgments once regis2 Vict. c. 110, bind lands as against purchasers and tered, and not re-registered within five years, would not mortgagees even with notice, is also confined in terms have that operation. This question, and also the ques. to judgments of the courts at Westminster. The con- tion whether notice to a purchaser of a judgment once sequence was, that a judgment of a palatine court, if registered, but not within the last five years, would not duly registered there, bound the whole of the debtor's bind him, (see 9 Jur., part 2, p. 131), have been set at land within the jurisdiction, as against purchasers and rest by the 4th and 5th sections of the new act, which mortgagees without notice, whether claiming by direct in effect declare that no judgment, &c. shall affect any conveyance or by appointment; and it was doubtful lands, &c., as against purchasers, mortgagees, and erewhether notice of such jadgments would not render the ditors, unless duly registered or re-registered within omission to register immaterial.
the five years. Thus, after four legislative efforts of As the county palatine of Lancaster was erected by the most eminent lawyers of the day, this little object Edward III, and in the fiftieth year of his reign of regulating the relative claims of judgment creditors granted in Parliament to his son John Duke of Lan - and purchasers upon some consistent plan (whether the caster, with all royal prerogatives, writs, executions, wisest is quite another question) seems to have been &c., we presume that the writ of elegit, granted by the attained, though in such a way as requires two or three Statute of Westminster 2, (13 Edw. 1, c. 18), has hours' patient study of as many acts of Parliament to always been available upon judgments of the Court of determine whether it has been attained or not, and Common Pleas in that county; and, if so, the omission how.
We do not charge the next (the 6th) section of the ments. But further: should judgments have been ennew act on the framers of the preceding acts. It merely tered up against the latter, the search must then be overrules the untenable doctrine in Frecr v. Hesse, renewed against the judgment creditors, and so on from (17 Jur., part 1, pp. 177, 702; see Id., part 2, p. 98), one set of judgment creditors to another, possibly run that a judgment becomes altogether void and lapsed, as ning through the whole alphabet, until at last no against purchasers, & by a single omission to renew judgment is found against any one having the remotest the registration within five years.
connexion collaterally with the title.”
Let no one By sect. 7 of the new act the proviso in sect. 22 of accuse Mr. Boyle of wbimsicality in this picture until the 1 & 2 Vict. c. 110, that no judgments, &c. of an in- he has shewn how to get rid of the doctrine of the ferior court, removed into a superior court, shall bind Lords Justices in Freer. y. Hesse, (17. Jur., part 1, lands as against purchasers, &c. until the writ of exe- p. 703; see Id., part 2, p. 286), that a title alleged to cution reaches the sheriff, is repealed; and such judg- rest on the possession of the legal estate, without noments, &c. so removed are placed on the same footing tice of a particular incumbrance on the equity, is not as original judgments of the superior courts, both as to marketable to one who has notice of that incumbrance. their operation and as to the condition of registration As Mr. Boyle says, that decision has virtually annulled and re-registration.
Lord St. Leonards' Act, 2 & 3 Vict. c. 11. The new act Sect. 10 of the new act places orders in bankruptcy attacks only one family of these mosquitos, namely, the for the payment of debts admitted to be due to the judgment and prerogative creditors of a mortgagee. By bankrupt's estate, and orders in bankruptcy for pay- sect. ll, purchasers and mortgagees, by conveyance ment of costs, respectively having by sects. 123 and subsequent to the act, of any legal or equitable estate, 249 of the Bankrupt-law Consolidation Act, 1849, the interest, or disposing power in or over land, are proeffect of a judgment, on the same footing as to regis- tected against the judgment and Crown debts of morttration and re-registration as judgments.
gagees paid off before or at the time of such conveyance. The next provision (seot. 11) is not so satisfactory. This is a short step in the right direction. According It relates to the question first brought into notice by to precedent, we cannot expect to have the evil fully the decision of Sir L. Shadwell, V.C., in Harris v. remedied until three or four more acts have be passed Davison, (15 Sim. 128), whether a judgment is not a
for the purpose. charge upon every possible interest in land of every The last provision in the act is a very odd one. possible description, to this extent, that a purchaser Introduced by a statement, that by reason of the repaying off an annuitant, mortgagee, or other incum- peal (with the usury laws) of the Annuity Act, 55 brancer, and taking the legal estate from him, is with- Geo. 3, c. 141, purchasers are deprived of the means out notice bound by every registered judgment against of discovering annuities by search, it enacts that no him, to the extent of his annuity, mortgage, or incum- annuity or rent-charge determinable on a life or lives brance, and that a purchaser paying off an equitable granted after the passing of the act, otherwise than by incumbrance is bound by every judgment against the marriage settlement or will*, shall affect lands, as to incumbrancer of which he has notice, (see Young- purchasers or mortgagees, unless and until a memorial husband v. Gisborne, 1 De G. & S. 209; Clare v. of the name, &c. of the person whose estate is charged, Wood, 4 Hare, 81; and Russell v. M'Culloch, 1 Jur., and the date of the deed, bond, instrument, or assurance N. S., part 1, p. 157)-a doubt at first very much dis- whereby the annuity is granted, and the annual amount, countenanced in practice, (see the Report of the Regis is registered at the Common Pleas, to be indexed there tration and Conveyancing Commission of 1850, p. 513), for search. It was very unusual to search for annuities, but which has been gaining ground, and, in the minds though the search, being in strictness a necessary preof some practitioners, was tending to consequences thus caution, was frequently advised. But now that the act traced by an ingenious writer* :-" Take a case of not has provided a registry of annuities, not, like the reuncommon occurrence-An estate is charged, by settle- pealed registry, for the purpose of exposing usurers and ment or will, with annuities to the widows of former spendthrifts, but expressly for the protection of purowners, and with portions for their successive younger chasers, a solicitor can in no case with safety neglect to children, and is then incumbered in favour of a dozen make the search, both in the new registry and in the different persons, and finally sold. What, under these old one. We foresee a host of questions on, and a long circumstances, would be the position of the purchaser? tail of amending acts to follow, this provision, but our He would have to search for judgments, decrees, &c., space will only suffice for these brief inquiries :- Why, first against the person having the legal estate, (unless in the present state of practice as to the possession of a bare trustee), and next in succession against the title deeds, is a provision for protecting purchasers to widows, the younger children, the several mortgagees be confined to incumbrances of a kind which do not and incumbrancers, and finally the mortgagor. The necessarily imply possession of the deeds ? Why of searches, however, would not end here: should judg- such incumbrances are life annuities alone to be sements exist against the various individuals, a new task tered, sales and settlements not? Why, when judgments
lected? Why, rather, are incumbrances to be regisis imposed upon the unhappy purchaser, and he must must be re-registered every five years, are annuities not then commence another series of searches against the placed on the same footing? And why does not this different creditors who have obtained the several judg- provision, with such a preamble as it has, and following
such elaborate provisions as to notice of unregistered * “ Suggestions for a General Index of Title, by W. R. A. Boyle, Esq.," an original reproduction of Mr. Wilson's plan in * The exception of annuities created by settlement is conmasquerade, which we shall notice when the question of re- tained in sect. 12; that of annuities created by will is in sect. 14. gistration comes again into season.
Such is the nice derangement of clauses in this act.
judgments, expressly preclude the question as to the separate journey; but if the district contained two or effect of notice of an unregistered annuity, which will three towns or populous villages, a single journey might certainly be raised upon it?
suffice for the service of twenty summonses. We think we have proved our assertion, that our cisely the same duty one bailiff might be paid a shilling law-makers are still very bungling apprentices. and another a sovereign.
Moreover, in the case last suggested, the interest of FIRST REPORT OF THE COUNTY COURTS the bailiff would be directly opposed to his duty. His COMMISSION.
daty would be to serve the process as soon as it was in(Concluded from p. 332).
trusted to him; but his interest would be to keep the process by him until others requiring service in the
same locality came to hand, so that he might be enabled, OBSERVATIONS BY MR. TAYLOR-(Continued). in popular phraseology, to kill several birds with one
The majority of the commissioners, while they re- stone. In the meantime, the debtors would escape or commend that the chief clerks should be paid wholly make away with their property, and the result would by salaries, appear to consider that such a mode of be, that the creditors would be defrauded. payment would be dangerous with respect to the high The second plan is at least equally objectionable; bailiffs. “ The duties of the high bailiffs are of so for how would it be possible to ascertain what number peculiar a description.” This vague language appears of miles had really been travelled in the performance to me to be really unmeaning. There is nothing pecu- of duty? No system of checks could be invented liar in the duty of a bailift. If the system proposed which would prevent fraudulent demands from being in the Report be expedient in the case of high bailiffs, made, or detect them when made. The plan would be it is equally applicable to officers of customs and ex- a positive premium on dishonesty. cise, to policemen, to postmen, to railway porters, to The third plan is open to the same objection as the medical officers of unions. All these officers have re- first; and the fourth is as impracticable as the second, sponsible duties to perform, with no more immediate Both these last plans would also have a direct tensupervision than high bailiffs. If a high bailiff neg- dency to induce bailiffs to neglect their duty with lects his duty, the judge must almost inevitably respect to the service of process within two miles from hear of it; for creditors, as a body, are little likely the court; for as that duty would be unremunerative, to let their interests be disregarded with impunity. it would, on the principles enunciated by the commisThen, if the judge does hear of it, the penalty to sioners themselves, become a mere secondary considerawhich the bailiff is exposed is sufficiently severe. tion, whenever more lucrative employment was in Under rule 41 it is provided, that “if the non-service hand. of a summons has been caused by the neglect of the Moreover, if either of these last two plans was bailiff, the poundage for such summons shall be paid adopted, the metropolitan high bailiffs would be utterly by the bailiff, and the successive summons shall be ruined. served by him without further fee.” I refer to this If any further argument were required to shew the rule as shewing that the commissioners are scarcely inexpediency of the plan proposed in the Report, it justified in asserting that the high bailiffs are so miglit be furnished by the conduct of the high bailiffs little under the immediate control of the judge."
themselves. If it be not expedient to pay postmen for every mile The object in view is to give them "a strong interest they walk and every letter they deliver-and if police in the complete performance of their duties;" for it is men ought not to be remunerated in proportion to presumed that without such an interest the duties will the length of their beat, and the number of offenders not be efficiently performed. Now, if this doctrine is whom they apprehend—I am at a loss to discover how worth anything, it must apply to the underbailiffs, the system proposed in the Report can be regarded as who actually do the work, at least as forcibly as to the sound. Some few years back that very system was high bailiffs, who superintend it. But what is the tried with the medical officers of unions. They were actual practice? I believe, on inquiry, it would turn appointed at a yearly unremunerative salary, but they out that underbailiffs are uniformly paid, not by piece were allowed to charge special fees for attending work, but by salary. In my own courts this system women in labour, and for other operations. Precisely prevails, and works well; and, as far as I can discover, the arguments put forward' by the commissioners were the same system is in general operation throughout the urged in support of this mode of payment. It was country. tried-it failed; and now, throughout the country, it The plan, therefore, which I venture to submit, in has been uniformly abandoned at the instance of the opposition to that proposed in the Report, is, that the Poor-law Board, and the plan of paying medical offi- high bailiffs, like the chief clerks, should be paid ex. cers by a remunerative salary, without fees, has been clusively, by salaries; but as the high bailiffs are substituted in its place.
required in the discharge of their duties to pay consiIn recommending that the high bailiffs should be derable sums out of pocket, both for keeping possession paid partly by salary and partly by payments propor- of goods taken in execution and for carrying delin. tioned to the distance they travel, the commissioners do quents to gaol, I think that they ought to be reimbursed not condescend to particulars, or explain in what mode these expenses. I therefore propose that they should they propose to calculate the remuneration for travel still be allowed the fee mentioned in the Report* for ling; but I presume that one or other of the four fol- keeping possession of goods, and also such sums in relowing plans must be adopted :
spect of mileage, or expenses incurred in carrying 1. À certain sum per mile for the service of each delinquents to gaol, as the Lords of the Treasury may process.
from time to time sanction with regard to each district. 2. A certain sum per mile travelled in the perform- In fixing the amount of these payments, the object ance of duty.
should be, not to remunerate the high bailiffs, but 3. A certain sum per mile for the service of each simply to protect them from loss, process beyond two miles from the court.
J. Pitt TAYLOR 4. A certain sum per mile for each effective journey beyond two miles from the court.
* “For keeping possession of goods till sale, per day, (inThe first plan, if adopted, would operate most un- cluding expenses of removal, storeage of goods, and all other fairly. In a district containing a scattered population, expenses whatever), not exceeding five days, 6d. in the pound the service of almost every process might require a on the value of the goods seized." (See ante, p. 297).
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THE COMMON-LAW PROCEDURE ACT, WITH THE NEW To be allowed, unless Cause be shewn to the contrary on or
RULES, &c. 1854 before the Day of Meeling.
Just ready, in 1 vol. 12mo., price 10s. cloth boards, W. Brettell, Little Marlborough-street, printer, Sept. 22 at THE COMMON LAW PROCEDURE ACT, 1954, 12, London. - Peter Poland and Evan Barnett Meredith, By HENRY THURSTAN HOLLAND and THOMAS CHANDLESS Bread-st., Cheapside, furriers, Oct. 5 at 2, London. ---James Jun., of the Inner Temple, Esqrs., Barristers at Law. Also, a Treatise on Smilk, Philpot-lane, tea dealer, Sept. 20 at 1, London.-J. Inspection and Discovery, under the above Act and the 14 & 15 Vict.
C. 99. By CHARLES EDWARD POLLOCK, of the Inner Temple, Bailey Serjeant, Portsmouth, wine merchant, Sept. 21 at 12, Esq., Barrister at Law. Together with Notes, Cases, Index, and the London, Charles Viner, Barge-yard, Buck lersbury, iron- New Rules and Forms of Michaelinas Vacation, 1854. monger, Sept. 20 at 2, London.-James Burford the elder and
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In 2 vols. royal Svo., price 21. in boards, Marylebone-st., stationer, Sept. 18 at 12, London. - William A PRACTICAL TREATISE on POWERS. By the Grant, Brighton, newsvender, Sept. 17 at 2, London. John
Right Hon. Sir EDWARD SUGDEN. The Seventh Edition.
H. Sweet, 3, Chancery-lane. Wilson Davis, Deptford, grocer, Sept. 18 at 12, London.
SIR E. SUGDEN ON THE LAW OP VENDORS AND Elizabeth Whitaker, Romford, plumber, Sept. 18 at 1. Lon;
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Merger of Attendant Terma, Defective Executions of Powers of Leasing, tailor.-Jokn Fenton, Liverpool, apothecarya tu evdás v 31:1)
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