176 Notes on Law and Lawyers.-The Property Lawyer. book. : THE PROPERTY LAWYER. BOX IN A THEATRE. The following point has never, we believe, been before decided: 3601. on the 31st of December 1834, for 3137. An agreement that plaintiff should be paid lent by him on the 26th of April 1834, if four persons named should be alive on the 31st of December, and that plaintiff should have the the intermediate time gratuitously; but if either use of two boxes at the Victoria Theatre in of the four persons should die, plaintiff should Held, not an agreement running with the pay a reasonable sum for the use of the boxes: land, and therefore not binding, as to the use of the boxes, on an assignee of the theatre. nor hardly in any other government; be- company we did not so much interchange cause there are so many connections and conversation as listen to him; and that dependencies to be studied. A despotic | Dunning observed upon this, One is alprince may choose a man to an office mere-ways willing to listen to Dr. Johnson.'-To ly because he is the fittest for it: the King which I answered, That is a great deal of Prussia may do it.' Sir A.- I think, from you, Sir.' 'Yes, Sir,' said Johnson, Sir, almost all great lawyers, such at least a great deal indeed here is a man willing as have written upon law, have known only to listen, to whom the world is listening all law, and nothing else.' Johnson. Why the rest of the year."" Vol. 7, p. 71. no, Sir: Judge Hale was a great lawyer, Here, for the present, we shut our noteand wrote upon law; and yet he knew a great many other things, and has written upon other things. Selden too.' Sir A.، Very true, Sir; and Lord Bacon. But was not Lord Coke a mere lawyer?' Johnson. Why, I am afraid he was; but he would have taken it very ill if you had told him so. He would have prosecuted you for scandal.' Boswell.- Lord Mansfield is not a mere lawyer.' Johnson.- No, Sir; I never was in Lord Mansfield's company; but Lord Mansfield was distinguished at the university. Lord Mansfield, when he first came to town, " drank Champagne with the wits," as Prior says. He was the friend of Pope.'b Sir A.—' Barristers, I believe, are not so abusive now as they were formerly. I fancy they had less law long ago, and so were obliged to take to abuse, to fill up the time. Now they have such a The judgment of Tindal, C. J., was as folnumber of precedents, they have no occalows:-Without entering into any nice dission for abuse. Johnson. - Nay, Sir, they tinctions on the cases cited, it is sufficient to had more law long ago than they have now. effect, a covenant to pay money borrowed. In say that this is a mere personal covenant; in As to precedents, to be sure, they will in- | consideration of 313. paid by the plaintiff on crease in course of time; but the more pre- | the 26th of April, 1834, to Abbott and Egerton, cedents there are, the less occasion there is they agreed to pay the plaintiff 3604, on the for law-that is to say, the less occasion is 31st of December 1834, if Abbott, Egerton, there for investigating principles.' Sir A.- the plaintiff, and Flight should be living on I have been correcting several Scotch ac-all live so long, the plaintiff should have the that day; and that till that day, if they should cents in my friend Boswell. I doubt, Sir, use of two private boxes in the theatre without if any Scotchman ever attains to a perfect paying any thing for them; but if either of English pronunciation.' Johnson.- Why, the parties should die, the plaintiff should pay Sir, few of them do, because they do not a reasonable compensation for the use of the persevere after acquiring a certain degree boxes. The use of the boxes is only thrown of it. In the same manner, Dunning may split the covenant, and say that part of it apin as a kind of bonus. Why then are we to plies to land, and part to personalty, when we see that it is no more than a covenant to pay John Dunning, Lord Ashburton, was money on a given day, the lender having the elected a member of the Literary Club in use of the boxes in the mean time? If it were 1777, being the 31st member (vol. 2, p. necessary to go further, we might observe that 327), and the circumstance is mentioned by this deed does not pass an interest in any speDr. Johnson in one of his letters to Boswell: and continue on any specific part; and it cific part of the theatre, or a licence to enter ، Mr. Dunning, the great lawyer, is one of | would be carrying the doctrine of covenants our members." (Vol. 6, p. 263). In a sub-running with the land, far indeed, to say that sequent volume, the following anecdote oc- so general an agreement is binding on the curs. I told him," says Boswell, that I had talked of him to Mr. Dunning a few days before, and had said that in his be found out to be a Devonshire Vol. 3, p. 186. 66 man.' assignee. It is a covenant on which the plaintiff might sue Abbott and Egerton, and nothing more. Lord Coke says, 5 Rep. 16b, "AÏthough the covenant be for him and his b He was also one of his executors.-Croker. collateral to the land, and doth not touch or assignees, yet if the thing to be done be merely 177 The Property Lawyer.-Responsibility of Trustees, &c.-Correspondence. concern the thing demised in any sort, there | rule with some of the Masters, that if a trustee the assignee shall not be charged. As if the is directed to lay out trust money on real lessee covenants for him and his assigns to build a house upon the land of the lessor, which is no parcel of the demise, or to pay any collateral sum to the lessor, or to a stranger, it shall not bind the assignee, because it is merely collateral, and in no manner gross value. Our correspondent does not adtouches or concerns the thing that was de-vert to the fact that the rule referred to by the mised, or that is assigned over; and therefore security, and he chooses to advance it on houses only, he ought to see that the sum so advanced does not exceed one-third of the in such case the assignee of the thing demised report is made to apply to houses, which, cannot be charged with it, no more than any although freehold, were not, according to the other stranger.' impression of the reporter, freehold in fee; Judgment for the defendant.-Flight V.but of this we shall make further inquiry.— Glossop, 2 Bing. 125. N. S. RESPONSIBILITY OF TRUSTEES. MORTGAGE ON HOUSES. ED. We have received the following from another correspondent: "It appears that in the case reported a prinTo the Editor of the Legal Observer. cipal part of the security was a windmill, and Sir, that more than two-thirds of the fair average I THINK it right to call your attention to the value (after allowing for the perishable nature report of a case decided at the Rolls, in No- of the machinery, and the great liability of the vember last, which appeared in your number property to depreciation,) had been advanced of the 26th December, and which, unless cor- upon it; and it is therefore clear, that if the rected, is calculated to excite, and in fact has Master of the Rolls expressed any opinion that excited, much alarm amongst persons filling an executor was not justified in lending on the situation of trustees, as well as the profes-mortgage of houses more than one-third of sion generally. the real value, such an opinion was extra in the plaintiff's favor. If any such principle is to be contended for, I could produce strong evidence against its reasonableness, by shewing many hundred instances of money lent on mortgage of houses, to any amount not exceeding two-thirds of the fair average value, without loss ever being incurred. I allude to the report of the case of judicial, and unnecessary for deciding the case Sewell v. Stickney, in which it is laid down to be a rule of the Court that a trustee is not justified in advancing more upon mortgage of property than one-third of the value. This certainly appeared to me, upon reading the report, a novel doctrine, and in consequence of the alarm expressed by some clients in the country, where it is the practice (when the security is unobjectionable in other respects) to advance to the extent of two-thirds of the value of property, if required, I was induced to apply to one of the solicitors concerned in the proceedings, to ascertain the correctness of the report. I had the satisfaction to learn that the report was extremely incorrect; and that though some such statement as that which the report calls "a rule" might have been advanced by counsel in the way of argument, the decision of the Court did not proceed upon any such supposed rule, but turned upon the peculiar circumstances of the case, and which certainly seems to warrant such a decision. Y. Z. We learn from the gentleman who reported the decision in question (and whose general accuracy does credit to this work), that the case depended on many circumstances, but involved, as he apprehended, the point reported, and to which alone he restricted the report in the Legal Observer. We have not at present an opportunity of ascertaining, from the counsel in the cause, the correctness of the report on that point; but we understand that it is a "It is not probable, however, that the Master of the Rolls expressed any opinion but on the facts of the case; and it cannot be much surprise on the profession, to hear of a decision that an executor ought not to lend on mortgage of a windmill more than a third of its real value, considering its perishable nature, and great liability to depreciation by compe tition. "I think, therefore, it will be seen, that the case reported establishes no new principle which the profession need be afraid of, or which need induce them to alter their constant practice.” SELECTIONS T. B. FROM CORRESPONDENCE. LIBERALITY OF THE LEARNED PROFESSIONS. To the Editor of the Legal Observer. her, I find the following remarks: "For the 178 Selections from Correspondence. nothing than any class of men who subsist by their skill and labour." This sneer at the profession, which, though not named, cannot be mistaken, has been well answered by the editor of a provincial paper: The Glamorgan, Monmouth, and Brecon Ga-tended the passage as an illustration of the zette, and Merthyr Guardian. I trust you will find room to insert his remarks in your next number: they are as follow: "There may be a profession in which a wider field is presented for gratuitous assistance to the poor, but there is not one in which the obligation that lies upon all men to assist each other is more cheerfully performed, than by members of the profession of the law. The time is past when a lawyer, like a monk, is to be exhibited in a play or a novel, for vulgar ainusement; and in the great highway of busy life there are none more honourably distinguished for integrity and humanity -none who may carry a head more erect than they. The opportunities of professionally assisting the poor is greater in the Physician than the Lawyer, for they have more diseases to be healed than suits to be conducted; but there is no comparison between the nature and extent of the service of him who prescribes without a fee, with that of helping by intellect and purse, the poor man to right who suffers wrong, -of standing between the oppressor and the oppressed; and these high and ennobling duties, this generous disinterestedness, and these gratuitous offices of humanity, there is not a respectable member of the profession who will not cheerfully undertake. We have proved it ourselves, and we have seen it exercised for the good of others; and, as an act of common justice, we enter our protest against the illiberality, in this instance, of the Journal we have quoted." R. O. M. น CRUISE'S DIGEST.-DOWER.-HEIR. Sir, In reply to a letter contained in p. 115-16, on the subject of some apparent contradiction in Cruise's Digest, I think a little reflection will convince W. B. I. that he has been led to his conclusion from not correctly understanding the expression made use of by Mr. Cruise in the first reference, as far as regards the heir not being considered as having been seised of the part assigned in dower. Where lands of inheritance are carved into different estates, the tenant of the freehold in possession, and the persons in remainder or reversion, are equally in the seisin of the fee. But in opposition to what may be termed the expectant nature of the seisin of those in remainder or reversion, the tenant in possession is said to have the actual seisin of the lands. Butler's note, Co. Lit. 266 b, n. 1. I think it is clear that in the extract referred to from Cruise, the author was only referring to that seisin or possession necessary to found the right to dower, and that he did not so much as intend a glance at the fee. The author infollowing passage from Co. Lit. 31 a. "If there be a grandfather, father and son, and the grandfather is seised of three acres of land in fee, and taketh wife, and dieth, his land descendeth to the father, who dieth either before or after entry: now is the wife of the father dowable. The father dieth, and the wife of the grandfather is endowed of one acre, and dieth, the wife of the father shall be endowed only of the two acres residue; for the dower of the grandmother is paramount to the title of the wife of the father, and the seisin of the father which descended to him (be it in law or actual) is defeated: and now upon the matter the father had but a reversion expectant upon a freehold, and in that case dos de dote peti non debet; although the wife of the grandfather dieth, living the father's wife." Immediately upon the assignment in dower being made by the heir, the dowress is in, as from the death of her husband, of a freehold for life; the seisin of the heir is defeated, as to the dowress'. part, and of that the heir has only a reversion, expectant upon the freehold of the dowress; and as the heir (the father) in the case supposed dies during the life of the grandmother, and after having made her assignment of dower, he has in fact never had, during his coverture, the kind of seisin or possession which is necessary to confer the right to dower of that. part on the mother. Coke, in a subsequent passage, makes this view of the subject of seisin still plainer, by distinguishing between the effect of the assignment of dower upon a seisin which has descended, and that which has been acquired by purchase; for he says, that if the father in the above case had taken from the grandfather by purchase or gift that took effect in the lifetime of the grandfather, before the title of the grandmother was consummate, then the seisin of the father, so acquired, is not de-. feated, but only quoad the grandmother; and in that case there shall be dos de dote. As to the queries on the subject of the possessio fratris, it must be borne in mind, that a person taking by descent cannot, without an actual seisin, transmit the estate by descent;, and the more modern case of Doe d. Gregory v. Whichelo, 8 T. R. 211, has determined that there must be an actual possession by the brother of the whole blood to pass an estate by possessio fratris. Hence, as by the assignment of dower to the second wife, the actual seisin necessary to support a possessio fratris is defeated, and the heir of 4. wil take the part which has been assigned in dower. The precise point is put and answered in Co. Lit. Now it is one of the essentials to dower, that | 15 a. the husband should, during the coverture, have been at some time seised in fee simple or fee tail in possession, i.e. there must not have been a freehold in some other person, to prevent the husband's actual seisin or possession; and C. C. Mr. Grimaldi's Lecture on Pedigrees. 179 Mrs. Owen used to ply for him, but not very LECTURES AT THE INCORPORATED decently, for she got any one to be married LAW SOCIETY. ON PEDIGREES. By Stacey Grimaldi, Esq., F. S. A. [Continued from p. 164.] who would. When Lilly died Owen kept a marriage house on her own account." On his cross-examination he said,-"If the clerk was out, the servant of the marriage house entered it in the book. Two of the houses were the sign of the Sawyers, and the sign of the Salutation and Cat, in Newgate Market. Another was the Bull and Garter. Lilly's was more of a private house, and had no sign." The examination of Mrs. Owen stated, "I kept the Fleet registers, but on going to America, sold them. I used to grant certificates to those who wanted them." bought the whole of the registers of Fleet Benjamin Panton, a witness, said "I marriages: they are between 500 and 600 in number, and are more than one ton in weight." The manner in which these marriages were celebrated, the conduct of the persons who assumed the power of registering them, and the numerous false entries in them of marriages which never did take place, have thrown such an odium on them, as to take from them even the authority of a private memorandum, although the marriages celebrated in the Fleet were undoubtedly valid. In addition to the parish churches, there were, before the passing of the Marriage Act, many chapels in and near London which exercised the privilege of marriage, and gave rise to great abuses: of these the FLEET and MAY FAIR were the most notorious; and it was probably owing to the scandalous acts committed by clergymen in the Fleet Prison, or in its rules, in celebrating unlawful marriages"in the adjoining taverns, brandyshops, alehouses, and other houses," that the act of 1754 was passed, though not without much opposition. May Fair Chapel was the resort of the higher class of society for clandestine marriages, and in those registers (which are preserved in the vestry of the church of St. George, Hanover Square,) appear, amongst other great marriages, that of the Duke of Kingston and the celebrated Miss Chudleigh, and that of the Duke of Hamilton with the beautiful Miss Gunning, in 1752. It is stated in the case of Morris v. Miller, There is, however, a marriage entry in the already referred to in Blackstone's Reports, Fleet registers which perhaps occasioned, at that the May Fair registers could not be rethe time, as much disturbance as any similar ceived as evidence; but it is not clear to me, match ever created, it being that of Henry whether the assertion was intended to apply Fox, the first Lord Holland, who, in 1744, generally, or only that they could not be reran away with the Duke of Richmond's ceived in the case in question. As they do not daughter. lie under the same imputation as the Fleet Such of the Fleet registers as could be dis-registers, there seems no reason why they covered and obtained have been purchased by should be inadmissible as evidence. Government, and deposited at the Bishop of They who seek a more minute account of London's Registry in Doctors' Commons, where they may be examined; but although they were received as evidence, by Mr. Justice Heath, at the Shrewsbury assizes, in 1799, yet, within a week from that period, Lord Kenyon held them not admissible as evidence, and such is the law at the present day. So early as 1732, the Commissioners of the Prerogative Court of Canterbury, in a cause of Storer v. Green, (falsely calling herself Luff,) rejected the register books as evidence, and pronounced the deceased to have died a bachelor, although his marriage was entered in the Fleet books. The evidence respecting the marriages in the Fleet, as given by a witness on the trial of Doe d. Passingham v. Lloyd, was taken down by Mr. Gurney; and as it is curious, and in all probability quite unknown, I shall read it to you. "Wm. Stiles Jones.-I lived in Fleet Lane. I knew the houses called Marriage Houses,' and register books were kept at them. The houses extended beyond the rules of the Fleet; Dr. Dean and Dr. Wyat were clergymen who celebrated Fleet marriages. The marriages were set down in a book kept at each of the marriage houses, by the persons who acted as clerks. Mr. Lilly had a marriage house, and parish registers, and of the Fleet registers, will find it in two small volumes, published some few years ago, by a member of our profession.b There will be found in the Bishop of London's Registry at Doctors' Commons, the registers of the chaplains attached to many Enmitted there for preservation by the Secretary glish embassies abroad, which have been transof State, from the year 1740 to the present time. PROTESTANT DISSENTERS of all denominations, have been accustomed to register the births of their children in registers at Dr. Williams' Library, Red Cross Street; and in some years there have been as many as 1000 entries in each year, but the number has diminished since Sir Thomas Plomer refused to receive the books as evidence. The books containing entries of the grants of MARRIAGE LICENCES are very important, and must on no account be overlooked, for connected with them are the original affidavits contain the names, descriptions, residences, made by parties applying for licences, which 180 Mr. Grimaldi's Lecture on Pedigrees. of the descents, pedigrees and marriages of all the nobility and gentry therein; and also to reprove, controul, and make infamous by proclamation all such as unlawfully, and without just authority, usurped or took any name or title of honour or dignity. When the visitations were to be made, the kings at arms, or the heralds, or their deputies, summoned the nobility and gentry in each county to give accounts of their several families and their coats of arms, which accounts were entered in books, which are terined Visitations. There are about 160 of these books, being an average of four for each county, although some counties have more than their proportion. and ages of the parties to be married, the church where the ceremony was to be performed, and occasionally the names of the parents. Many licences, or rather transcripts, of a date prior to the Reformation, are to be found registered in the Vatican, in the Castle of St. Angelo, and the office of the Dataria at These commissions continued to be granted Rome; but there is great difficulty in obtain- at intervals until 1686, when the last was ising leave to have these archives looked into. sued, the returns under which commission do Those licences subsequently to the Reforma.not appear to have been perfected till 1703. tion, with the affidavits, ought to be found in the registries of the several archbishops and bishops. In London, there are three distinct offices where searches should be made; first, the Bishop of London's Office, as regards his Consistory Court; secondly, the Vicar General's, which has authority over the whole see of Canterbury; and thirdly, the Faculty Office, or Office of the Primate, which has jurisdiction over York as well as Canterbury. The Licence Records commence in 1630 at the Faculty Office, but at the other offices they do not commence until after the fire of London, in 1666, all earlier having been burnt. The documents preserved by these offices, are the affidavits made by persons applying for licenses, and the bonds entered into by them at the same time, and you will not fail to observe, that the marriage licence, by naming the parish where the marriage is to be celebrated, enables us to obtain evidence to prove such marriage; and as the majority of persons in the middling and higher walks of life are married by licence, it will be advisable when we are searching for evidence of a marriage, to go in the first instance to the Marriage Licence Offices, and search their books. I think we may now consider, that we ought to have obtained from the sources already pointed out, such information as will justify our visiting the COLLEGE OF ARMS, and searching the MSS. in that repository; for it is to be remembered, that as the visitations of the heralds were taken, and are arranged according to counties, and terminate about the year 1700, we may lose much advantage by going to the College without being enabled to direct the Heralds clearly to the particular family we are in search of. The COLLEGE OF ARMS or HERALD'S COLLEGE, which is situated at Doctors' Commons, was incorporated by Richard 3, in 1483, and the kings and heralds have been engaged from that period to the present time, with more or less industry and ability, in compiling and recording pedigrees and other notices relating to honours, arms, and biography: their collections are consequently both numerous and valuable, containing amongst them the labours of some of our most eminent English antiquaries. The first documents to examine will be The HERALDS' VISITATIONS, the first of which was made in 1528 (20 Henry 8), by virtue of the King's commission to Clarencieux, king of arms, empowering him to visit certain counties, and peruse and take knowledge, survey, and view of all manner of arms, cognizances, crests, and other like devices, with the notes The respective pedigrees entered in the Visitations are in general signed by a member of the family: they are admitted as legal evidence. Some two or three of them have been lost, or have become separated by accident from the College. There is certainly one, if there be not more, in the British Museum,of course improperly, and unfortunately; for by this change of ownership, they have lost their quality of being evidence. This volume, though not an original visitation, is an ancient transcript, probably by a herald, of the Visitation of Berkshire in 1566; and I have produced it, as it will enable you to understand the form of the entries more clearly than any description. It seems to have been made about 200 years since. It is now intended to be presented to our Library. Independently of the Visitations, the College of Arms contains very valuable collections relating to the families of the nobility and gentry. The labours of Augustine Vincent alone present upwards of 200 volumes. We shall also find in the College, entries of the Grants and Exemplifications of Arms of all the families in England to whom arms have been granted; entries of Ceremonials observed at Royal Marriages, Coronations, Public Funerals, Proclamations, &c. There are also Lists of Knights from very early periods, and the only authentic records of them from the commencement of the reign of James I. to the present time. There will also be found a multitude of other volumes in MS., containing Copies of Deeds, Charters, and Records, Drawings of Seals, Coats of Arms, Painted Glass Windows, Monuments, with their Inscriptions, Licences for Change of Name, and other information applicable to genealogical researches, comprehending the accumulated lahours of Glover, Camden, Philpot, Dugdale, Le Neve, and other distinguished and skilful members of the College. It should also be noticed that the College possesses many Volumes of Pedigrees, certifying the descents of Individuals from certain a Pedigrees of Berkshire, with Additions, down to 1623. |