pointedly and happily expressed by Mr. Joshua Williams, that we shall cite his words, without any com

ment:

"It is quite evident, that, in the above-mentioned acts, the columns containing the short sentences either express the same ideas as the corresponding columns containing the long sentences, or they express ideas in a greater or less degree different. If they express the same ideas, then it is equally evident that the acts are altogether superfluous, for there would clearly be no occasion to enact that one sentence, which means the same thing as another, should be considered, by authority of Parliament, as having the same meaning. If, however, the columns containing the short sentences do not express the same ideas as the columns which contain the long sentences, then the following very great inconvenience arises: the sentences used in deeds executed under these acts will not express the same meaning as the same sentences in every other place, [and even in other parts of the same deed] and a new legal language will, in fact, be formed. Every science has its technical terms; but these terms are seldom such as are employed elsewhere, and the difficulty of acquiring them is more than counterbalanced by the precision which they impart. Of such terms the law has an abundance, consisting both of words and of short phrases. But the acts in question are an attempt to introduce not merely technical words and technical phrases, but whole sentences with a technical meaning; and this technical meaning they are to possess notwithstanding that they are pure English sentences, and have long enjoyed a meaning of another kind, and are still allowed to possess that meaning elsewhere. If the two acts which have already passed should (as it is to be hoped) be the only acts of the kind, the mischief that will arise will be of no great importance, for they are adapted only to very simple cases, and it is not probable that they will be generally used. But, if the contemplated scheme for adapting these schedules to deeds of all kinds should ever come into operation, the mischief likely to be produced is incalculable. In reading such a deed, a struggle would constantly be felt between the natural English meaning of the sentence and the unnatural parliamentary construction. The labours of the Profession would be enormously increased, for every lawyer would be obliged to perfect himself in the new language; without it he could not possibly comprehend the meaning of any deed; and there can be little doubt, that, in the preparation of such deeds, an amount of skill and labour would be required, as well as a responsibility incurred, far greater than is now the case; and the public, paying for such skill, labour, and responsibility, would be proportionally injured. The work of the hand would, no doubt, be diminished; but the more expensive labour of the head would be greatly increased. The English language sufficiently possesses in itself the desired qualities of perspicuity and conciseness. Let a man but possess clear ideas, and, whatever be his subject, the English language will afford him means of clear and concise expression. If any proof be needed that the subjects with which the art of conveyancing is conversant afford no exception to the general rule, reference might be made to the numerous collections of concise precedents which from time to time have issued from the press. On all these precedents the acts in question tend to cast discredit; for it is evident that the Legislature considers the verbose sentences in the second column to be replete with meaning, and, by applying the extraordinary power of Parliament to their compression, it seems to imply that they cannot be sufficiently and satisfactorily condensed by any ordinary means. The style of deeds used in ordinary practice is certainly verbose, but it is gradually growing less so, notwithstanding that a direct premium is given to verbosity; first, by a scale

of remuneration greatly inadequate; and, secondly, by that scale being regulated only by length. Hold out some inducement to brevity, instead of giving a premium to verbosity, and the style of legal instruments will soon become quite as concise as accuracy will admit. The provision in the acts, that the deeds shall be charged for according to the skill and labour employed, and the responsibility incurred, is so far an effort in the right direction, and it is to be hoped that the time may come when professional remuneration generally shall more nearly follow the same rule*."

Mr. Williams's criticism on the act to render the assignment of satisfied terms unnecessary forms so striking an exception to the general soundness of his remarks on the recent statutes, that we should have hesitated to receive it as the work of the same pen, if the subject had not been one which belongs to the superstitions of conveyancing. We understand that a gallant band of quixotic conveyancers has organised itself into a humane society, for the express purpose of preserving, by means of an act to be obtained, all terms from future merger, and for resuscitating, by the same agency, those which have been included in the noyades of the 31st December, 1845. These gentlemen seriously maintain that there can be no honest, safe, or satisfactory dealing with "unattended" estates: whether they go so far as to reject all such estates as unmarketable, we have not ascertained. One eccentric practitioner has devoted himself to the manufacture of terms of years, which, he flatters himself, can never be satisfied-terms originally and expressly created for the sole purposes of attending the inheritance. These insatiable terms he considers as beyond the jurisdiction of Lord Brougham's acts, and, though mere nursery seedlings at present, as likely to afford shelter and protection in future ages to troops of happy and grateful purchasers and mortgagees,-sua si bona nôrint. Mr. Williams does not run into these extravagances; but his evident eagerness to find fault with the statute has caused him to be satisfied with arguments which his unbiassed judgment would never have tolerated. After explaining the nature of attendant terms, and labouring very needlessly to prove that a term of seven and a term of one thousand years are of the same nature in law, and that the reversions in fee expectant on such terms respectively possess the same incidents, (in illustration of which undeniable postulate, he uses a most incorrect mathematical proposition†), he puts the case of a settlement under which A. is merely tenant for life, and X. remainder-man in fee, an attendant term having been left unappropriated. "A., professing to be owner of the fee, sells to B., and the term is assigned to B., as trustee for the protection of B., A. being still alive. The act now passes. The term of years is evidently one attendant on the reversion by express declaration, within the meaning of the act, and the act enacts, that it shall absolutely cease, except that, although made to cease, it shall afford to every person the same protection as it would have afforded him if it had continued to subsist, and shall, for the purpose of such protection, be considered in every court of law and

*"Remarks on the Acts of the Session 8 & 9 Victoriæ

relating to Real Property, with an Answer to the Question Whether attendant Terms ought still to be assigned to Trustees for Purchasers;' intended as a Supplement to Principles of the Law of Real Property.' By Joshua Williams, Esq., of Lincoln's Inn, Barrister at Law."

† Viz. that "7+x=1000+ α." If so, and if, as we

resume Mr. Williams, in his view of the force of the symbol , will admit, (though we do not), it be true, that x=x, then, as the results of the subtraction of equals from equals must be equal, 7 + x-x=1000+ α-α; .. 7=1000. Scholium:-In the same manner any number may be proved to be equal to any other number.

or a shilling should be left unpaid, so as not fully to satisfy the trusts.

"Eu.-The ingenuity of these gentlemen is not much greater than their wisdom. If the trusts escape being released in the process, (which is most likely to happen), they are sure to be soon extinguished by the Statute of Limitations, or the doctrine of presumption. No court would countenance such follies. In the meantime the 'protected' would be much at the mercy of one of his protectors-not the trustee of the term, but the trustee, so to speak, of the penny.

"Ti.-But suppose, that, at the commencement of the present year, the term should be vested in a trustee, in trust as a further security for a mortgagee of the fee, or a mortgagee by demise, and, subject thereto, in trust to attend the inheritance?

"Eu.-The original trusts of the term being, of course, satisfied? The term would then be a satisfied term within the 1st section". That it was held in trust to protect not a simple unencumbered fee vested in one person, but the various subdivided interests of several persons in the fee, or only the partial interest of one person in a portion of the fee, can make no difference. Quoad the objects for which it was created, the term is satisfied; and, until it became a point of honour to pick holes in every beneficial reform, no one attributed any other meaning to the phrase. But, whether conveyancers understand the word in this sense, or not, it is clear that it is so used in the act; for a term assigned in trust to attend the inheritance or reversion' is expressly doomed to destruction as a 'satisfied' term. Now, a trust to attend and protect a purchaser of the inheritance is just as real and substantial a trust as a trust to attend and protect an incumbrancer on the inheritance; and if the existence of the former trust will not save the term from annihilation, as being satisfied, that of the latter cannot do so. And if this were not so, the term would, at all events, become satisfied on the discharge of the protected incumbrance.

"Ti.-Then, do you conclude that all terms are in future to be neglected in conveyancing?

"Eu.-The satisfaction of the objects for which a term was created must, of course, he looked to, as heretofore, and also the possibility of feats of legerdemain being performed with it, for purposes of protection, while it continues unsatisfied and in existence. With regard to

terms which were attendant at the close of the last year, one object, which was formerly attained by calling for an actual assignment, must now be sought for in a different way; namely, an assurance that the term has not been (before 1846) assigned for the benefit of some latent and prior claimant or incumbrancer. An assignment by the apparent trustee for the time being, with a covenant that he had not encumbered, afforded a sufficient guarantie that no such appropriation had been made in his time; and now, though an actual assignment is out of the question, yet, if the apparent trustee of 1845 is living, he should be required to give an equivalent in the shape of a distinct assurance that he has not been party to any concealed alienation or incumbrance.

Ti.-Why not take the safe course of executing assignments as heretofore?

"Eu.-Because it is your duty to your client not to waste his money; your duty to the public to aid, and not to obstruct, amendment; and your duty to yourself not to make a fool of yourself. If a conveyancer, after careful deliberation, concludes that the act has not effected its purpose, I can only wonder at him; but if, without having so arrived at such a conclusion, and from indolence merely, or timidity, he resolves to follow the old course, because it is safe, he has mistaken his vo

* A different construction is suggested in a former article, (9 Jur., part 2, p. 526), proceeding, of course, from another

pen.

cation, and should quit a profession for which he is not morally qualified. Solicitors attempting to keep up this profitable farce of protection may be speedily brought to their senses by an appeal to the taxing Master.' G. S.

Correspondence.

RAILWAY COMPANIES AND ALLOTTEES.

TO THE EDITOR OF THE JURIST.

Sir, In a late article in THE JURIST, (Vol. 9, p. 489), you treated of the recovery of deposits by railway companies from the allottees of shares, and therein express an opinion, that, in many cases, such companies have a remedy in equity.

you

It appears to me, that, at law, the deposits may generally be recovered, and that the difficulties in the way of such recovery are not in reality so great as they have appeared to the learned Solicitor-General. I say "generally" be recovered, because, of course, where there has been fraud, or any material deviation from the terms of the contract, the remedy cannot be enforced. But this is no peculiarity applicable to allotments of shares alone; it applies to all cases of contract, and, therefore, should not be imported into the abstract question of enforcing allotment-agreements.

cessary

documents.

The general course has been for the applicant to write to the provisional committee for shares, agreeing to pay the deposits when required, and to sign the neThe shares (or, rather, a title thereto) are then allotted usually by the managing committee, and the allottee is required to pay the deposits and sign the parliamentary deed by a certain day. Now, the question is, if the allottee neglect to pay the deposits, can an action be successfully maintained against him at the suit of the provisional com

mittee?

First, I would submit, this is a valid agreement. The letter of application is in the nature of an offer or proposal; the letter of allotment is an acceptance of such offer. But it is objected, the acceptance of the offer is not by the party to whom the proposal is made: the allotment is by the managing committee, whereas the application was to the provisional committee. It seems a sufficient answer to this objection to observe, that the managing committee form a section or part of the provisional committee: they are partners with the provisional committee and act for them, and as their agents. The provisional committee, then, allot the shares by the managing committee.

If an order be sent to a merchant, and be a ssented to by his agent, would it be contended that the rule, "Zui facit per alium facit per se," would not apply? And so, if the active members of a firm enter into a contract for the purposes of the partnership, it is not invalidated because the dormant partners were not parties to it, although the proposal for such contract may have been addressed to the firm generally.

It may also be remarked, that the applicant in most cases has the means of knowing who are the members of the managing committee at the time he applies, for they are usually formed about the same time as the provisional committee, and appear together with them in the prospectus. He must be taken also to know their duties. When he applies to the provisional committee, he applies also to that which is a part of and contained within them, the managing committee.

Secondly, as to the remedy at common law. The first question would be, is the allottee a partner together with the provisional committee, so as to prevent them from suing him at law? I think it is clear that he is not a partner; the application and allotment form an agreement to enter into a partnership, the capital of

which is to consist of a certain sum, and the objects of which are to be effectually attained by an act of Parliament. He has no right to participate in any profits, at all events, before he has paid the deposit on the allotment. In Fox v. Clifton, (6 Bing. 776), it appeared that the "Imperial Distillery Company" had issued a prospectus, stating that the affairs of the company were managed by a board of directors, that a deed of settlement would be prepared forthwith, that application was intended to be made to Parliament for an act, and that the shares would be forthwith allotted. It will be seen how closely analogous this prospectus is to the prospectus of a railway company. It was held by the Court of Common Pleas, that a subscriber to the above distillery company was not a partner, although he had paid the requisite deposits, but that he had merely assented to become a partner in a company, raising a certain capital, and to be governed by a deed, and that he had no right to participate in the profits. "We think," said Tindal, C. J., in delivering judgment, "if the right to participate in the profits of a joint concern is to be taken, as undoubtedly it ought to be, as a test of partnership, these defendants were not entitled at any time to demand a share of profits, if profits had been made, inasmuch as they had never fulfilled the conditions upon which they subscribed."

As to the parties to the action, the provisional committee, including, of course, the managing committee, should be the plaintiffs, on the ground already adverted to, that they stand in the relation of active or ostensible and dormant partners, who may always join in an action on a contract made by the active partners. (Leveck v. Shaftoe, 2 Esp. 468; Bawden v. Howell, 4 Scott, N. R., 331).

Supposing an action of assumpsit to be brought on the agreement contained in the letters, and the general issue only to be pleaded, ippose the plaintiffs at the practical difficulties would oppose the plaintiffs at the trial. In the first place it would be necessary for the plaintiffs to procure the letter of application in their possession to be stamped. Where an agreement consists of several letters, it is sufficient, by 55 Geo. 3, c. 184, (sched., part 1), if any one of such letters be stamped. (And see Hemming v. Perry, 2 M. & P. 375).

The penalty for stamping an agreement, consisting of not more than 1080 words, after fourteen days from its being entered into, is now, by 7 & 8 Vict. c. 21, increased from 51. to 10%.; and, as this sum would not be allowed in costs to the plaintiffs, even though successful, they will probably be deterred from suing any but those against whom they feel assured of having a good case, and from whom they may reasonably expect their damages and costs, in the event of success.

The original letter of application being in the possession of the plaintiffs, they will give the defendant notice to admit the handwriting, and, in default of such admission, they must prove it at the trial.

The original letter of allotment being in the hands of the defendant, he should be served with a notice to produce it. The probabilities are certainly against his compliance with this notice, and, in that event, the plaintiffs must be prepared to prove a copy, verified as such, and to shew that the defendant received the original. I have heard it objected, that, although the receipt of notices of dishonour and the like may be presumed, from evidence of their having been put into the post, yet that, where it is sought to prove so essential a part of an agreement as the acceptance of the proposal, stronger evidence will be required.

But surely this is confounding the rules of evidence with the nature of the documents to be proved. The law having recognised, as a general principle, that proof of having put a letter into the post-office shall be primâ facie evidence of the receipt thereof, the same principle should apply, whatever may be the contents

of the letter. To be allowed, in any case, it must be some evidence to go to the jury, and it is the best that can be procured in by far the majority of instances.

Such, it appears to me, will be the course to be adopted by railway committees. If the defendant has any special matters of defence, they must be alleged and proved by him.

On a review of the whole question, therefore, the conclusion I arrive at is, that, in general, there are not insuperable difficulties in the way of companies enforcing their remedy at law, though, doubtless, practical difficulties will arise in many cases on their own special circumstances. I am, Sir,

Temple,

Jan. 22, 1846.

Your obedient servant,

COURT OF QUEEN'S BENCH.

HILARY TERM.-9 VICTORIA.-Jan. 22.

H. M.

Jan. 17.

London Gazettes.

TUESDAY, JANUARY 20.

BANKRUPTS.

WILLIAM WARD, Manchester, auctioneer, dealer and chapman, Jan. 30 at 2, and March 6 at half-past 12, Court of Bankruptcy, London. Off. Ass. Alsager; Sols. Newbon & Evans, Wardrobe-place, Doctors'-commons.-Fiat dated THOMAS PRENTIS HAWLEY, Brunswick-parade, Barnsbury-road, Islington, Middlesex, cheesemonger, dealer and chapman, Jan. 29 at half-past 11, and March 6 at 1, Court of Bankruptcy, London: Off. Ass. Alsager; Sols. Fisher & De Jersey, 62, Aldersgate-st.-Fiat dated Jan. 14. WILLIAM BALDWIN, Norland-road, Notting-hill, Middlesex, victualler, Jan. 30 at 11, and March 6 at 2, Court of Bankruptcy, London: Off. Ass. Whitmore; Sols. Dimmock & Burbey, Sise-lane.-Fiat dated Jan. 14. SIR JOHN ROSS, Knight, Gracechurch-st., London, banker, dealer and chapman, Jan. 30 and March 3 at 1, Court of Bankruptcy, London: Off. Ass. Belcher; Sol. Buchanan, 8, Basinghall-street, London. Fiat dated

Jan. 17.

JOHN HENRY BANKS, Great Newport-st., Middlesex, engraver and copper-plate printer, dealer and chapman, Jan. 30 and March 3 at 12, Court of Bankruptcy, London: Off. Ass. Pennell; Sol. Wootten, Tokenhouse-yard. - Fiat dated Jan. 16. VICTOIRE SUSANNE URSULE LENORMAND, Regent-street, Middlesex, milliner and dress maker, dealer and chapwoman, Jan. 29 and March 3 at 11, Court of Bankruptcy, London: Off. Ass. Graham; Sols. Mardon & Prichard, Christchurch-chambers, Newgate-street. — Fiat dated Jan. 16.