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Printed by WALTER M'DOWALL, PRINTER, residing at No. 4, Pemberton Row, Gough Square, in the Parish of St. Bride, in the City of London, at his Printing Office, situate No. 5, Pemberton Row afore said; and Published at No. 3, CHANCERY LANE, in the Parish of St. Dunstan in the West, in the City of London, by HENRY SWEET, LAW BOOKSELLER and PUBLISHER, residing at No. II, John Street, Bedford Row, in the County of Middlesex. Saturday, January 3, 1846. No. 470-VOL. IX. JANUARY 10, 1846. Price, with Supplement, 1s. 6d. The following are the Names of the Gentlemen who favour THE JURIST with Reports of Cases argued and decided in the several Courts of Law and Equity: [H. W. CRIPPS, Esq. of the Middle Temple, Barrister at Law. { (G. J. P. SMITH, Esq. of the Inner Court of Queen's Bench J. PULLEINE, Esq. of the Middle Temple; and Temple, Barristers at Law. The Lord Chancellor's {E. T. HOOD, Esq. of the Inner Queen's Bench Bail Court Inn, Barrister EL of Gray's Court ..... Temple, Barrister at Law. Temple, Barrister at Law. Vice-Chancellor of England's Court Vice-Chancellor Knight [W. W. COOPER, Esq. of the Inner Bruce's Court..... 1 Temple, Barrister at Law. Vice-Chancellor Wigram's [ F. FISHER, Esq. of Lincoln's Court 1 Inn, Barrister at Law. ..... LONDON, JANUARY 10, 1846. WITH the present year has commenced the working of the Assignment of Terms Act, (the 8 & 9 Vict. c. 112), and the question now continually discussed among conveyancers is, how this act is to be dealt with. Is it to be treated as a dead letter, or is it to be considered as rendering attendant terms a dead letter as to future dealings with them? We purpose in one or more future Numbers of THE JURIST, to lay before our readers a careful and practical discussion of the new property acts; but, in the meantime, we shall here just throw out a few cursory observations on this particular act, and refer to the contending opinions that have made their appearance from time to time in print, and are now floating about as a shadow of darkness in conveyancers' chambers. One opinion advocated, with no deficiency of ability, in a cotemporary journal of jurisprudence*, goes to the very root of the efficacy of the statute. It is contended, that, having regard to the language of the statute describing the species of term to which it applies, and to the form of the limitations by which terms are usually limited to attend the inheritance, such terms are not, in fact, satisfied, and, therefore, are not affected at all by the statute. The following is the argument of the learned writer who advocates this opinion: "A term created either before or after the period of this act coming into force, ab initio on trust solely to attend and protect the inheritance, clearly does not come within the letter of the statute; and, indeed, rational doubts may as clearly be entertained, whether it would be just that it should. Now, take the case already put, of a term created upon trust to raise a sum 5 Law Magazine, N. S., 259. Court of Common Pleas," including Appeals under Registration of Voters Act.... Court of Exchequer...{ at Law. D. POWER, Esq. of Lincoln's Inn, Barrister at Law. W. M. BEST, Esq. of Gray's Inn, Ecclesiastical and Admi- [J. P. DEANE, D.C.L. of Doctors' { W. W. COOPER, Esq. of the Inner Temple, Barrister at Law. of money by way of mortgage. Upon paying off the mortgage, the mortgagor, instead of having it surrendered, procures it to be assigned to a trustee to attend in the very same deed in which the mortgagee acknowledges the payment of the money, by which payment it is that the term becomes, according to what has been before stated, a 'satisfied' term. Why is this term to cease, any more than one ab initio created and decreed to be held upon the very same trusts to attend and protect the inheritance? The trusts are never for a moment suffered to remain undeclared; no interval occurs during which an implication of the courts can attach; eo instanti that the first trust ends, a new express trust arises. There are no successive stages. It may fairly be questioned, whether a term, under such circumstances, can be said to be a satisfied term, which has become attendant on the inheritance by the express declaration,' because the very instrument which de clares it attendant prevents its being satisfied. "But, again, the instrument by which a term is made attendant usually declares the same to be in trust for A., his heirs and assigns, and to be assigned and disposed of as he or they shall direct and appoint; and in the meantime, and until such direction and appointment, and subject thereto, to wait upon and attend the reversion and inheritance in the same hereditaments, and to protect the same from mesne incumbrances.' "A term, then, assigned upon such trusts as these, is not only a term attendant, but also, for some purposes, a term in gross. The trust to attend is a secondary trust, subject to any other which the owner of the in heritance may at any time direct; and the very terms shew an intention to make some direction. The case is much stronger, that such a term should not be at once declared at an end, except by express words of the act. It evidently is not, within the strict letter N the description, 'a satisfied term by express declaration attendant on the inheritance;' for there is another trust existing prior and paramount to the trust to attend, and which, though as yet undeclared, may at any time be declared by A., his heirs or assigns. It may, therefore, fairly be questioned, whether, in the absence of explicit declaration, a term held upon these express trusts is within the statute." illusory portion of the charge would be effective, of whether it would be held a fraud upon the statute. For instance, supposing a term to be charged with portions, whether leaving a nominal part of such portions unpaid would keep the term unsatisfied, so as to take it out of the statute. It is obvious, that, where a term is old, there may be many circumstances, with regard to existing titles, in which it will be desirable to avoid the destroying finger of the 3 & 9 Vict. c. 112, if it be possible. But, with regard to future titles, it passes one's understanding why there should be any endea vour to elude the statute. Nevertheless, we believe that some conveyancers are acting consistently with the mischievous suggestion made by the present learned editor of Mr. Jarman's Precedents, (Sweet's Conveyancing, Statutes of 8 & 9 Vict., p. 14), and engrafting on titles, terms created expressly to attend the inherit Now, with respect to this argument,-saying nothing of its resorting to a construction of the word satisfied never dreamt of before the statute, and, therefore, one that could not have been in the mind and contemplation of the Legislature,-we apprehend that it is incorrect, tested by its own measure, of the veriest and merest technicality; for it confounds the limitations of which a term is made susceptible with its objects. A term created to support, or actually supporting, a sub-ance. stantial charge, has its object satisfied when the charge is paid off. It exists still as an estate, and may be made subject to various limitations; that is, its appropriation may be varied. It is obvious, however, that the appropriation of a term may have nothing to do with its objects. If it is intended to support a charge, does it do so the less because its ownership is transmitted or varied? So long as the object-the purpose-remains, the term is not integrally altered, although its ownership may be modified. As soon as the object is satisfied, then the term is integrally altered, whether its ownership is varied or not. Besides, is it not a mere play of words, to call the trust for the owner of that inheritance and his appointees, preceding the limitation to attend the inheritance, a specific object of the term, making it a term in gross? What is such a trust more than a declaration in words of the incidents of the term? What is it more than an assignment of the term, upon trust to assign it again? And how can the mere power of nominating the assignee, if the term be left, as it came to the hands of the trustee, a mere dry term, fasten upon it anything to be satisfied? As to terms originally so limited, it may be difficult to contend that they can be held satisfied, however shadowy may be the primary object of their creation. But it may be asked, what is the use of such an evasion of the statute as a system? When we are dealing with existing titles, deduced through a long series of years, it may be well, as we have no control over the past, to take the protection of a term created for one purpose, but allowed by the law to be used for another. But, when we are making titles for the future, why should we create two estates, when there is no greater certainty of the one being kept clear than the other? What greater difficulty can there be in future in keeping clear the stream of title with reference to the inheritance, than there would be with reference to s term? By thus perpetuating terms, in despite of the wholesome efforts of the Legislature, all the old negligence with regard to the inheritance will be encouraged, and far greater expense will be thrown upon estates for keeping up a most frail engine of protection, than would suffice to pay for that care and accuracy in every transaction, which is, after all, the truest and best protection to a title. Parker, Selby, Yorkshire; Henry Coldicott, Dudley, But while some conveyancers adopt thus an opinion, the result of which would be, that there can be, in effect, no such thing as a satisfied term, and that, therefore, MASTERS IN CHANCERY.-The Lord Chancellor has we are to continue assigning terms to attend, as if the appointed the following gentlemen Masters Extraord 8 & 9 Vict. c. 112, had no existence, others seem de-nary in the high Court of Chancery:-Robert John sirous of applying the statute to an extent which, in our humble opinion, it was not intended to reach; and contend that a term which has been once satisfied, that is, the original charge on which has been paid off, must be held a satisfied term, even though it may be actually now charged with a substantial charge. For instance, suppose a term created 100 years back to raise portions; the portions to have been raised; the term to have passed through various mesne assignments to attend, and ultimately to have been assigned on trust to secure a mortgage, or an annuity, or some other specific charge; it is contended, that such a term is satisfied, within the meaning of the 8 & 9 Vict. c. 112. This, we confess, appears to us going as much too far in support of the universal application of the act, as the opinion first discussed goes too far in favour of its total nullification. In our view, the Legislature had in contemplation terms which, on the 31st December, 1845, had no earthly object but to attend and protect the inheritance; and it did not mean to interfere with terms which then bore the load of any actual specific incumbrance. We conceive, therefore, that, wherever we find that a term on the 31st December supported an actual charge, distinct from the protection of the inheritance against unknown dangers, such a term may be kept alive by future assignments, notwithstanding the statute, provided the charge be also kept on foot. It may deserve consideration, whether, where it is desirable so to keep alive a term, keeping on foot an Horace Beauchamp Seymour, K.C.H., for the county of Antrim, in the room of John Irving, Esq., deceased. Thomas Plumer Halsey, for the county of Hertford, in the room of the Honourable James Walter Grimston, commonly called Viscount Grimston, now Earl of Verulam, called up to the House of Peers. MEMBERS RETURNED TO SERVE IN PARLIAMENT.-Sir The Right Hon. Sir Nicolas Conyngham Tindal, Knt., Lord Chief Justice of the Court of Common Pleas, has appointed the under-mentioned gentlemen to be Perpetual Commissioners for taking the acknowledgments of deeds to be executed by married women in and for the respective counties and districts attached to their names:-Thomas Thompson, of Sunderland, Durham, in and for the county of Durham; William Willders, of Bourn, Lincolnshire, in and for the parts of Kesteven, in the county of Lincoln, also in and for the parts of Holland, in the same county; John Ashmore Smith, of Hinckley, Leicestershire, in and for the county of Leicester; George Harrison Gardner, of Bowness, Westmoreland, in and for the county of Westmoreland, also in and for the counties of Lancaster and Cumberland; George Morris Barker, of Birmingham, Warwickshire, in and for the county of Warwick, also in and for the counties of Stafford and Worcester. Cox v. King Evans v. Jones Matthews v. Leyburn Bill of Rev. Evans v. Brown (E, FD, C) Cutwell v. White (E, F D, Evans v. Griffiths (Bill of *The following abbreviations have been adopted to abridge the space the Cause Papers would otherwise have occupied:-A. Abated-Adj. Adjourned-A. T. After Term—Ap. Appeal-C. D. Canse Day-C. Costs-D. Demurrer-E. Ex-Lockhart v. Hardy ceptions-F. D. Further Directions-M. Motion-P. C. Pro Confesso-Pl. Plea-Ptn. Petition-R. Re-hearing-S. O. Stand Over-Sh. Short. JUDGMENTS. Thomas v. Hardy Kelly v. Norris with Griffith Lockhart v. Arundell Ditto v. Lipcombe Richardson v. Horton (FD, Ditto v. C, Till ment) Att.-Gen. v. Bedingfield Lowther (E) part heard (E, FD, C, Ptn) part heard Augerand v. Parry part heard Hodgkinson v. Cooper Weekes v. Dodson | Haldenby v. Spofforth (FD, C, Ditto v. Walton Tanner v. Dancey (F D, C) D, (F D, C) Morgan v. Ditto c) Gibson v. Sturgis (Supp. Bill) with Nicols v. Alsager Reebee v. Perry (FD, C) Malden v. Tyson (F D, C) Heming v. Archer (Suppl.) (E 2 Kay v. Price sets, FD, Lockhart v. Lee REMAINING UNDETERMINED AT THE END OF THE SIT TINGS AFTER MICHAELMAS TERM, 1845. MICHAELMAS TERM, 1844. worth (part heard). Ditto e. Cooksey} (F D, C) Midd.-Hope v. Harman Ptn) (F D, Ditto v. Brown Hill & an. v. Kendall EASTER TERM, 1845. Ditto v. Ditto Harris v. Farwell Ditto v. Ditto Ditto v. Dunn Clark v. Ditto hearing) Att.-Gen. v. Newman Yearwood v. Yearwood Whitton r. Field Cocker v. Musgrove Bowles v. Milbourn Mears v. Green Reg. v. Douglas Herts-Griffiths v. Lewis Richardson v. Corbett (F D, Surrey-Solomon v. Lawson C) Nelson v. Duncombe Robertson v. Towgood Passingham v. Sherborn (F Ambrose v. Dunmow Union Thorold v. Gylby Ditto v. Rowe Peach v. Miles (F D, C) Beavan v. Gibert (E) Forbes v. Leeming Heming v. Archer Ditto v. Ditto Ditto v. Ditto Heather v. Norbury Griffith v. Kelly (to come on Dobsonv. Blackmore Bucks-Rowles v. Senior |