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2 TSI) HT 2011 No. 513—VOL. X. NOVEMBER 7, 1846. han Yaua 1 to PRICE 18 ** 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: hinwa 112 1OOR 2 2243 12V

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I n that the manifold wants of mankind dictate, and with

those the proposed scheme of registration by means THERE seems to be just now a great effort made toʻstir of transfer books can have nothing to do. Take, for the mind of the general public, to the contemplation of instance, the case of an estate in land conveyed to, the horrors of conveyancing; and even the columns of trustees upon trust for a husband for his life, remainder newspapers have become the arena on which the cham to the wife for her life, remainder in tail to the first and pions and antagonists of the feudal conveyancing are other sons, remainder to the daughters, as tenants in giving battle.

common. The husband and wife are living, and the In a warfare of this kind, there is already, and there eldest son, having attained his majority and married, will be to a still greater extent, misrepresentation and has barred the entail on his marriage, and has re-settled exaggeration,-misrepresentation of the causes of mis- his newly-acquired estate to himself and his wife, and chief, and great exaggeration of the magnitude of the the issue of the marriage. He has also mortgaged his mischief itself; misrepresentation or misunderstanding life estate ; and one may suppose, without any exaggeraof the working of proposed alterations, and consequent tion, various other dispositions of, or incumbrances upon, exaggeration of their beneficial effect.

the beneficial interest in the land." The present pet notion of conveyancing reformers, is Now, the next personage in this conveyancing drama, to assimilate the conditions of land, at least as regards will be the purchaser of the partial beneficial interest making a title to it, to those of money in the funds; of one of the beneficial owners, -say, of the mortgagee that is, to have something in the nature of a registry, of the life interest of the son, the tenant for life in reon which shall be inscribed the names of the owners of mainder expectant upon the decease of his father and land, and the description of the lands; and to make the mother. Now, it is plain, that it is of no use for him transfer of any lands described in such books from the to apply to the trustees for a transfer. They can only names in which they stand, into other names, have the transfer to the purchaser of the whole fee, and of effect of passing absolutely to the transferees the whole course their trust deed will have taken care to provide interest, both legal and beneficial. It is thought, that, that they shall not sell, without the consent of the by such a scheme, immense simplification will be ef- owners, certain specified beneficial estates. All that the fected; and, to some extent, no doubt, it would sim- intending purchaser can do, therefore, with regard to plify the process of transferring land, because it would the purchase of the limited beneficial interest that he abolish all inquiries as to the devolution of the legal is about to acquire, will be, to take a conveyance of it estate, beyond the single inquiry into the fact of the from its apparent owners, taking care to ascertain that particular person purporting to be the vendor, appear- such apparent owners deduce a good title; and taking ing on the register as owner. That would be sufficient care, also, to give proper notices to the legal owners, evidence of his ownership, and the transfer of the pro- the persons in whose names the land stands. In fact, perty from his name into that of the purchaser, would the investigation of the equitable title must be exactly be all that would be required to transfer the simple and what it is now, the only difference being, as to getting a entire fee. There would, however, remain behind, all complete title, that notice to the acknowledged and w the complicated dispositions of the beneficial interest | yisible owners, whose names are in the transfer books, Vol. X.




will be substituted for a conveyance from the legal a possibility of complicated interests in the beneficial owners; and the necessity of deducing the title to the ownership of land, no rules affecting the mere legal legal estate will be abolished. In fact, the result will be ownership can go very far in rendering the transfer of simply to render these modes of acquiring title to real property, in the aggregate, simple and inexpensive. estate precisely similar to, and neither more nor less burthensome than, those of acquiring title to personal


"Now, those who are much engaged in conveyancing business connected with mercantile transactions,-those L. Nov. 4.-Lord Denman, C. J., said, “At the sittings particularly who are much in the habit of being con

in banc after last term, we intimated' that we should, in

this term, postpone the Special Paper till the sittings sulted upon and preparing mortgage deeds for borrowers in banc after term. We shall accordingly take the in the middle and trading classes of life,--are well aware | New Trial Paper on Tuesdays and Fridays during the that there are few transactions which raise more intri- term, instead of the Special Paper. We do not feel cate and difficult questions as to title, than sales and justified in postponing the Crown Paper, and shall mortgages of equitable interests in personal estate therefore take it as usual, on Wednesdays and Saturvested in trustees. They possess, in common with transactions relating to real estate, the difficulties arising out of those inquiries (sometimes of great intricacy) | Justice of the Court of Common Pleas, by her Majesty's

1 The Right Hon. Sir Thomas Wilde, Knt., Lord Chief necessary for establishing representation or devolution command, has been sworn of her Majesty's most Ho. of title to the beneficial interest, by kindred or by pur- nourable Privy Council.

chase. And though they are free from the inquiries The Queen has been pleased to make the following · necessary in regard to real estate, as to the devolution legal appointments:-James Simms, Esq., to be As

of title to the legal estate, they are obnoxious to all sistant Judge of the Supreme Court of Judicature in those hyperdifficult questions of implied or constructive

the island of Newfoundland; Edward Mortimer Archi

bald, Esq., to be her Majesty's Attorney-General for notice to the legal owners of the property purchased, that island: and Charles Douglas Stewart, Esq., to be which have made it difficult for judges to lay down any her Majesty's Solicitor-General for the island of St. rules, and still more difficult for professional men to say, Vincent. à priori, when any particular state of facts falls within MASTERS IN CHANCERY.-The Lord Chancellor has such rules as the judges have ventured to lay down. appointed the following gentlemen Masters Extraordi

nary in the high Court of Chancery :-Joseph Morton Of course, in these arguments, we are assuming that Barret, of Otley, in the county of York: Edward Lane it is not proposed to deprive owners of particular bene- Swatman, .of Lynn, in the county of Norfolk ficial interests, from dealing with those interests as their | LOCAL ACTS OF PARLIAMENT.-By a bill passed last. wants and wishes may dictate; and of course, there- session, (9 & 10 Vict. c. 106), notice must be given, on fore, we assume that beneficial owners would not, under or before the last day of the present month, where it is

intended to make an application to Parliament for an any reformed system, be precluded from preventing the

act for the establishment of any waterworks, or for trustees, the registered owners, from selling the land on

draining, paving, cleansing, lighting, or otherwise imwhich they claim their varied interests, without the proving any town, district, or place, or for making, consent of all, or of certain of the beneficial owners. maintaining, or altering any burial ground or cemetery, To suppose otherwise would be to suppose an extent of or for continuing, altering, or enlarging any of the absurd despotism, of which we do not suspect even con- | powers or provisions contained in any act or acts re

lating to any of the purposes aforesaid. Taking these assumptions for veyancing reformers.

A notice in

writing of such intention to apply to Parliament in the granted, the increase of facility of selling land would be

next ensuing session for an act for any of the above obby no means so great as is anticipated; because trustees jects, “shall, on or before the last day of November, OT | would only be able to sell pursuant to their trust deeds, in case such day shall fall on a Sunday, then on the that is, in almost all cases, with the consent of a consi- / day preceding, in each year, be sent or delivered to the derable number of beneficial owners; so that the sale office of the Commissioners of her Majesty's Woods, would depend, just as it depends now, upon the esta- such nótice shall be signed by the promoters of such in

Forests, Land Revenues, Works, and Buildings; and blishment of the right to sell, or, in other words, of the tended work, or by some person duly authorised on title of the equitable owners.

their behalf, and shall be accompanied by a statement We are not desirous of ridiculing, or even, to use a

in duplicate of the intended objects and provisions of

the proposed act, and with such plans, sections, books familiar expression, of throwing cold water upon the of reference, or other documents, if any, as are required transfer-book system, or upon any other proposed sys- | by the standing orders of either House of Parliament to tem of reform in the law of real property, and in the be deposited in any public office.” The commissionmode of conveying property. All that we wish to do ers, on or before the 1st March in each year, are to apis. to guard our readers, and through them the public. | point an officer to make local examination, and to re

port thereon to Parliament. The surveying officer to against imagining that any system, purporting to deal

be appointed is to give public notice of his intention, and merely with the visible legal ownership of land, can

Visible legal ownership of land, can may summon persons and examine them on oath on the wholly remove complexity and expense from transac- intended local act. The expenses of the inquiry are to tions relating to the sale of land; and to remind them, be defrayed by the promoters of the undertaking. This that the real sellers of land always are, and always act was passed, according to the preamble, to give 13must be, while the institutions of the country are free, information previous to inquiries before either House

cilities for procuring more complete and trustworthy the beneficial owners; and that while there remains, as of Parliament on applications in certain cases for local there must always remain in a commercial community, acts.-Times.



Wife's Acquiescence in her Husband's Receipt of her

separate Property. ]-If a husband and wife join in apDesigned to combine the Advantages of an Abridgment of,

pointing a person to receive the rents of an estate devised and an Index to, the recent Cases, and of an original

to her separate use by a member of her family, and Statement of the Points established thereby,

such person pays the rents into a bank to the husband's (Concluded from p. 441).

account, although that bank be the bank of the wife's family, and not the bank of the husband, and the hus

band all along draws cheques for the money, some of LEGACIES.

which he applies to his own purposes, without any payWhere a Lapsed Legacy is undisposed of.]—Where a ment being made to the wife, or any claim being made testator, after giving the residue of his property in trust | by the wife to any part of the money, and at the for certain persons, in equal fourths, wills, that, in case death of the husband a large balance remains in the the net residue shall be found to exceed a certain bank, it belongs to the husband's estate, and not to the amount, that amount only shall be applicable to the wife; for she must be deemed to have acquiesced in his trusts before declared ; and he bequeaths all the resi- having the absolute dominion over the property; and due of his property beyond that amount amongst cer

nothing that takes place after his death can affect the tain other persons; and the residue does exceed that balance which existed at his death, so as to give the amount; and one of the first-mentioned legatees dies in / wife a right to it after she acquiesced in his absolute the testator's lifetime, his share will not pass as residue dominion over the rents received in his lifetime, which to such other legatees, but is property undisposed of by Iconstitute that balance; the question being, whether. the will: for the words of the will must determine the at the death of the husband, the fund was his. Beresrights of the parties, although, according to this con- , ford v. The Archbishop of Armagh, 13 Sim. 643. struction, if the residue were less than such amount,


Restraint of Antóninatis

Restraint of Anticipation of Property bequeathed for and all the first-named legatees pre-deceased the testa

Separate Use.]-Where property is bequeathed to trus

sen tor, the other legatees would take nothing, which can

tees, in trust to pay the income unto such person or not be supposed to have been the intention of the testa

persons, and for such intents and purposes, and in such tor. Green v. Pertwee, 10 Jur. 538—V. C. W.

manner, as a married woman, when and as the same Interest accrued during Minority.]—Where a testator shall become due, but not by way of assignment, gives a sum of money amongst certain children, to be

charge, or other anticipation thereof, shall, notwithpaid at the age of twenty-one, with benefit of survivor

standing coverture, direct or appoint; and, in default ship, and he wills that his trustees shall and may apply of any such direction or appointment, into her proper the interest towards their maintenance and education hands, for her sole and separate use, independent of the until their respective shares shall become payable, and debts, contracts, or interference of her husband; and her that the trustees may apply the whole or any part of receipts, notwithstanding coverture, are to be good and the principal at any earlier period than the same would sufficient discharges to the trustees for such income; become vested or payable, for the advancement of the the limitation in default of appointment does not enable infants; the representatives of a child who dies under the married woman to anticipate. And the case does age are not entitled to the interest accrued during his not depend on the form of the receipt clause. The feme minority. Skaife v. Stewart, 10 Jur. 299–V. C. E. is only to have a power of disposing of the income

Charged on Real Estate. 7–Where a testator gives his “ when and as the same shall become due," and " not residuary real and personal estate to his executors, and by way of assignment, charge, or other anticipation." charges them with the payment of his legacies, this will In default of such a disposition as is authorised, the amount to a charge of such legacies on the real estate, income is to be paid into her own hands. Brown v. even though an annuity be formally charged by him on Bamford, 10 Jur. 447-L.C. his real estate. Cross v. Kennington, 15 Law J. 167- Her Right to a Fund invested in the joint Names of M. R.

herself and her Husband. ]-See “ TRUST," Case 3. Setting off a Legacy to a Wife against her Husband's See“ Power of Appointment." Debt.]—Where the husband of a legatee has agreed with the executors to set off the legacy against a debt of equal amount due from him to the testator, and he and his

MISTAKE. wife have signed a receipt for the legacy, but have not

Substituting a new Charge, without extinguishing the released the executors, and it does not appear that they | former one. 1-Far v. Sheriffe and Dukes v. Farr. 4 have delivered up the note to him; his wife, if she sur-l'Hare, 512. “A statement of the point will be found vives him, will be entitled to the legacy, in consequence Lante'n. 198 of there being no release by, or payment to, the husband. Harrison v. Andrew, 13 Sim. 595.

MORTGAGE. See “ Administration," " Annuity,Mortmain," and

Right of a Mortgagor's Surety to an Assignment of the "Survivorship.

Mortgage.]-A mortgagor's surety, who has been ob

liged to pay off the mortgage debt, cannot compel the MAINTENANCE-See “ Legacies," Case 2.

mortgagee to assign the mortgage to him, unless he pays

off a further sum advanced by the mortgagee on the Manor.

security of the same estate ; for the right of the surety Evidence of Reputation as to a Boundary of a Manor. 7 to stand in the place of the mortgagee is subject to the -Evidence of reputation is admissible as to the bound right of the mortgagee to make a further loan to the ary of a reputed manor, that is, of a quondam manor, mortgagor. Williams v. Owen, 13 Sim. 597. as well as of a subsisting manor; inasmuch as conver- Bar to an Equity of Redemption by the Statute of Lisations during the existence of the manor might be mitations. ]-An assignment of a mortgage, to which retained in memory since; and, further, the supposed the mortgagor is not a party, but which recites that the discourse, which may be proved as reputation, is not equity of redemption has not been barred, is not such confined to tenants, but may proceed from any person an acknowledgment of the mortgagor's title as to save residing in the neighbourhood, and engaged in talking the right of redemption from being barred by the Staupon the subject. Doe d. Molesworth v. Sleeman, 10tute of Limitations; for the acknowledgment mentioned Jur. 568—Q. B.

I by the act is one that is made to “ the mortgagor or some person claiming his estate," not to a person claim-mination of the joint concern, he becomes an owner of ing the estate of the mortgagee. Lucas v. Dennison, 13 any part of the land, it is only upon a new transaction, Sim. 584.

and by acquiring a new title and right as purchaser; Improper exercise of a Power of Sale. 1--Although and upon his death nothing descends to his heirs. a mortgagee may have an express power of selling the Sparling v. Parkes, 10 Jur. 448—M. R. mortgaged premises, without the consent or concurrence See " Condition.of the mortgagor, his executors or administrators, and without even being under any express obligation to

PARENT AND CHILD, give notice of sale, yet, if he exercises the power in spite or person in loco parentis and child. of an offer of payment of principal, interest, and costs, See.Fraud.within a few days from the time of such offer, and in such a way as not to obtain so large a price as might

PARTITION otherwise be reasonably obtained, the sale will be set of Copyholds held in Joint-tenancy.]-An agreement beaside, with costs, against the mortgagee. Matthie v. tween two devisees in joint tenancy of copyholds and Edwards, 10 Jur. 347–V.C. B.

legatees under a will, to divide between them the real Deposit of Title-deeds creating a Mortgage upon the and personal estates of the testator, pointing out the whole Property. 7–Where title-deeds are expressed to be parts to be taken by each, and acted on up to the time deposited until payment of a debt, an equitable mort of the decease of one of them, by an occupation in segage of the land is thereby created, and not a mere lien veralty, will be deemed an agreement for a partition, on the deeds themselves; and, primâ facie, such a de- and decreed to be specifically performed; although the posit creates an equitable mortgage upon the whole of survivor avows, in his answer, that the agreement was the property comprised in them; so that, on those only intended as a suspension of the joint tenancy durwho contend the contrary lies the burden of proofing the life of the deceased; and although there is a that it does not. Ashton v. Dalton, 10 Jur. 451- stipulation, that, if either party should disannul the V. C. B.

agreement, he should pay a certain sum to the other. Sale, after a Foreclosure, for less than the debt, and Bolton v. Ward, 4 Hare, 530. claim for the balance.]—Where a mortgagee forecloses an estate, and afterwards sells it for a less sum than the

PARTNERSHIP. amount of his debt, he will not be allowed to prove for the deficiency under a bond for the debt, and a decree Real Estate let to a firm by two of the members of that for the adininistration of the debtor's estate. Lockhart firm.]-Although real property, purchased by two v. Hardy, 10 Jur. 532—M.R.

partners, and used by them for partnership purposes, is See * Admission,Attorney,Specific Perform

to be considered in equity as personalty, yet, if it is afance.

terwards used by a new firm, consisting of the first firm

and of a third person, and a rent is paid for it by the MORTMAIN.

new firm to the persons who constituted the first firm,

it is to be considered as real estate of the latter. RoloBequest for the Establishment of a Charitable Re-levy.

for the Establishment of a Charitable " Re- | ley v. Adams, 7 Beav. 548. ceptacle," with a Limitation over. ]-Where a testator gives the residue of his personal property upon trust for the establishment or institution of a charitable re

Policy. ceptacle, if the same can be done, for a number of poor | Right to surrender a Policy of Insurance effected by people; but if no such institution can be conveniently the grantee of an annuity on the life of the grantor. ]established, he requests that the property be disposed Where it is stipulated, that, in case the grantor of an of in charitable donations, such a bequest is void under annuity for his own life shall repurchase it, and shall, the Statute of Mortmain, on the ground that the pri- at the time of making such repurchase, by notice in mary and direct object is the acquisition of a dwelling- writing to the grantee, elect to take any policy which place for the charitable purpose, and it is only in case may be effected on the life of the grantor by the grantee, no such institution can be conveniently established, and at the grantee's expense, and which may be then vested not in case it cannot be lawfully established, that the in the grantee, the grantee shall assign the same, but bequest over is to take effect. Attorney-General v. that it shall not be incumbent on the grantor to effect, Hodgson, 10 Jur. 300_V.C. E.

or renew, or keep on foot any such policy; the grantee Charity Legacies payable out of the proceeds of shares has no right to surrender the policy, and appropriate in a company. - Where, by an act of Parliament or a the value thereof, after notice given by the grantor of deed, by whichagas light or dock company is constituted, his intention to repurchase, and thereby make it imit is provided that the shares in the land and other pro- possible to carry the agreement into effect. Hawkins perty and profits of the company shall be deemed per- ' v. Woodgate, 7 Beay. 565. sonal estate, and transmissible as such, and not of the nature of real estate; and that upon a dissolution of the company, its property shall be sold, and the proceeds

POWER OF APPOINTMENT. divided amongst the shareholders; and a shareholder, Construction of the words during the coverture, and whose personal estate, exclusive of the shares, is insuffi notwithstanding the same."]-Where a pre-nuptial setcient to pay his legacies in full, gives legacies to chari-tlement gives the intended wife a power of appointment ties, the shares do not come within the operation of the “ at any time or times thereafter during the coverture, Statute of Mortmain, 9 Geo. 2, c. 36; and, conse- and notwithstanding the same," such power cannot be quently, the charity legacies ought not to abate, so far exercised by her when a widow, or during any other as they are payable out of the proceeds of the shares. coverture than that in contemplation of which such For, a shareholder in such a company, whilst he con- settlement was made. Morris v. Howes, 4 Hare, 599. tinues to hold his shares, has no distinct or separate Whether executed. 7-Where a testatrix, having & right to the land or any part of it: he is, indeed, in-power of appointment in favor of her children, gives terested in the employment of the land; but he cannot and bequeaths, and, by virtue of every power enabling proceed against the land directly for anything which is her in that behalf, appoints all the property of or to due to him, or make any part of the land his own, in which she is, or at the time of her death shall be, pospart satisfaction of any demand or claim he may have sessed or entitled, or have power to dispose, to trustees, as a shareholder. And if, upon a dissolution or deter- upon trust, after payment of all her debts, funeral and

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