394 Notes on Conveyancing.-The Property Lawyer. suit was dismissed at the hearing: Held, | 4007. and 1007., or either of them, which had been assigned to the defendants in trust, under the following circumstances, as disclosed at the trial before Gurney, B., at the last Bristol Assizes. In the month of April last, a woman who there passed by the name of Mary Burdock, was tried, convicted, and executed for the murder of Mrs. Smith. A short time before her apprehension, she had been married to one Burdock; and these two sums of 4001. and 100%, which had been paid by her into the bank of Stuckey's banking company at Bristol, the former under the name of Williams, the by Sir L. Shadwell, V. C., that B. was entitled to a compensation out of the fund for the tithes of the land situate in S.d Where an estate sold under a decree was described as of a certain annual value, and by the conditions compensation was to be made for any error in the particulars; the purchaser paid his money into Court, was let into possession, and took a conveyance. After he got into possession, he discovered that the rent was overstated in the par-latter under that of Agar, were then assigned ticulars. Sir L. Shadwell, V. C. held, that he was entitled to a compensation out of his purchase money.e If an estate be sold as in possession, the purchaser cannot be compelled to take it if it is subject to a lease for life, or, "indeed, any lease," in Sir Edward Sugden's opinion.8 There is a recent case decided at common law on this subject, which may be also noticed. Premises were sold by auction upon this condition, among others: If any mistake be made in the description of the property, or any other error whatever shall appear in the particulars of the estate, such mistake or error shall not annul or vitiate the sale, but a compensation or equivalent shall be settled by two referees or their umpire (as the case may be) which shall be final." The particulars of sale described the premises as a leasehold public house, comprising (inter alia) a small yard and wash-house, held for a term of years at the rent of 551. It appeared that the yard and wash-house, which were essential to the occupation of the premises, were not in cluded in the lease, but were held from year to year at an additional rent. It was held by the Court of King's Bench, that the misdescription was not the subject of compensation within the condition, and that the sale was void by reason of such misdescription.h THE PROPERTY LAWYER. PROPERTY ACQUIRED BY ADULTRESS. The following case is of some interest. This was an issue directed by this Court under the Interpleader Act, to try whether or not the plaintiff was entitled to two sums of d 'Crompton v. Lord Melbourne, 5 Sim. 353. g 1 Vend. & P. p. 299, 9th ed.; and see the subject of Compensation treated in Chap. VI. hDobell v. Hutchinson, 5 Nev. & M. 251. to the defendants, in trust to pay the interest The Legal Observer. SATURDAY, MARCH 26, 1836. "Quod magis ad Nos Pertinet, et nescire malum est, agitamus. HORAT. NOTES ON CONVEYANCING. In Dyer v. Hargrave, Sir William Grant, M. R., acted on the same principle, and compelled a specific performance of an WHERE A DEFECTIVE TITLE MAY BE EN- agreement for the sale of an estate, not FORCED WITH COMPENSATION. withstanding a variance from the description, with compensation for its deficiency A QUESTION not unfrequently arises, whe-in value. In a leading case on the subject, a contract had been made for an estate, and it afterwards appeared that there were several outgoings from the lands, which were not disclosed at the time of the contract; thus, it was represented to be tithe-free, and it turned out to be liable (together with some other lands), to the payment of 147. per annum : it was represented that the purchaser would have an unlimited right of common, and it appeared that the right of common was confined to sheep only. On a bill being filed by the vendor for specific performance, Lord Thurlow, C., conceived that he was bound by previous authorities to compel the performance of the contract, with a compensation for the defect; "it was settled," he said, "that wherever it was possible to compensate the purchaser for any article which diminished the value of the subject matter, he must be satisfied with such compensation; but he would not lay down this rule as universal, for a case might be so circumstanced, that the party might have purchased purely for the sake of the very particular wanting." Howland v. Norris, 1 Cox; S. C. 6 Ves. jan. 678, cit. nom. Lord Stanhope's case. VOL. XI.-No. 324. A purchaser of an estate sold as tithe-free, cannot be compelled to take it, subject to tithe, with a compensation. But Lord Eldon, C., held, that where an estate of one hundred and forty acres was sold under a decree, the particulars stating that about thirty-two acres were tithe-free, and no evidence of exemption having been produced, on the reference of the title, that the Master should be directed to certify the proper amount of compensation.c In a very late case, A. agreed to sell an estate tithe free to B. Afterwards C., the vicar of L., (in which parish part of the estate was situate,) filed a bill for tithes against the occupiers of another part of the estate, as also being situate in L.; A. agreed that part of the purchase money should be set apart as an indemnity to B. against the claim made by C., which was accordingly done, and B. paid the remainder of his purchase money, and took a conveyance of the estate. C. died, and his suit was dismissed for want of prosecution; but the indemnity fund was not transferred to 4. One of C.'s successors instituted a fresh suit, for the tithes of the same lands. Pending these proceedings it was discovered that those lands were situate in the parish of S.; and were titheable to the rector of S., and on proof of those facts, the latter b 10 Ves. 505. c Banks v. Lord Rokeby, 2 Swanst. 222. 2 D 394 Notes on Conveyancing.-The Property Lawyer. suit was dismissed at the hearing: Held, | 4007. and 100, or either of them, which had by Sir L. Shadwell, V. C., that B. was entitled to a compensation out of the fund for the tithes of the land situate in S.d Where an estate sold under a decree was described as of a certain annual value, and by the conditions compensation was to be made for any error in the particulars; the purchaser paid his money into Court, was let into possession, and took a conveyance. After he got into possession, he discovered that the rent was overstated in the particulars. Sir L. Shadwell, V. C. held, that he was entitled to a compensation out of his purchase money. If an estate be sold as in possession, the purchaser cannot be compelled to take it if it is subject to a lease for life, or, "indeed, any lease," in Sir Edward Sugden's opinion.8 been assigned to the defendants in trust, under the following circumstances, as disclosed at the trial before Gurney, B., at the last Bristol Assizes. In the month of April last, a woman who there passed by the name of Mary Burdock, was tried, convicted, and executed for the murder of Mrs. Smith. A short time before her apprehension, she had been married to one Burdock; and these two sums of 4001. and 100%, which had been paid by her into the the former under the name of Williams, the bank of Stuckey's banking company at Bristol, latter under that of Agar, were then assigned to the defendants, in trust to pay the interest to herself and her husband during their lives, and the principal, at the decease of the survivor, to two illegitimate children she had had by a person named Wade, who had bequeathed that she had been married to the plaintiff in to her all his property. It was clearly proved 1919, and that after living with her a short time in Bristol, he had left her, and had had no intercourse er communication with her since. During this period, she had lived with several persons, and latterly had carried on trade on her own account. Before her trial, she and her trustees applied to the bankers to pay them the 500/.; but Mrs. Smith's administrators having also laid claim to it as part of her property, the bankers refused to pay it. Considerable expenses were incurred in her defence by her attorney, who was the partner of the defendant Collins, and was retained by the defendant on her behalf. After her execution, the defendants as trustees, and the plaintiff, severally commenced actions against one Maningford, a director of the banking company, for the amount of the two sums so deposited; and by a judge's order, proceedings were stayed in both actions, and the present issue directed. The learned Judge told There is a recent case decided at common law on this subject, which may be also noticed. Premises were sold by auction upon this condition, among others: If any mistake be made in the description of the property, or any other error whatever shall appear in the particulars of the estate, such mistake or error shall not annul or vitiate the sale, but a compensation or equivalent shall be settled by two referees or their umpire (as the case may be) which shall be final." The particulars of sale described the premises as a leasehold public house, comprising (inter alia) a small yard and wash-house, held for a term of years at the rent of 551. It appeared that the yard and wash-house, which were essential to the occupation of the premises, were not in-the jury, that if they believed the plaintiff was cluded in the lease, but were held from year to year at an additional rent. It was held by the Court of King's Bench, that the misdescription was not the subject of compensation within the condition, and that the sale was void by reason of such misdescription.h THE PROPERTY LAWYER. PROPERTY ACQUIRED BY ADULTRESS. The following case is of some interest. This was an issue directed by this Court under the Interpleader Act, to try whether or not the plaintiff was entitled to two sums of d Crompton v. Lord Melbourne, 5 Sim. 353. e Cann v. Cann, 3 Sim. 447. Collier v. Jenkins, 1 Yo. 295. g 1 Vend. & P. p. 299, 9th ed.; and see the subject of Compensation treated in Chap. VI. h Dobell v. Hutchinson, 5 Nev. & M. 251. clearly entitled to recover; and the jury found a the husband of the woman Burdock, he was verdict for the plaintiff. Merewether, Serjt. moved for a new trial, on the ground of misdirection; and urged, that under the circumstances, the general rule of law by which a husband was entitled to his wife's personal property, did not apply to the present case. A husband is not liable for his wife's contracts when she is living apart from him in adultery; it must follow, therefore, that being compelled to procure her own maintenance, she must be able to contract for herself. If she can contract, it is necessary that she should be enabled to acquire property to meet her contracts; and if she can acquire property, her power to dis pose of it follows. [Alderson, B.-Is there any example of an action being maintained against a wife under such circumstances?] Ir Cox v. Kitchen, 1 Bos. & P. 338, Buller, J. expressed an opinion that she might contraci under such circumstances, and would be liable on her contracts, even without a separate maintenance. It is clear that a married woma may dispose of personal property given to he separate use: Fettiplace v. Gorges, 1 Ves The Property Lawyer.-On the Statute of Limitations. 395 jun. 46; 3 Bro. Ch. Ca. 8. [Alderson, B.-It | entered into his employment as a farming is a strange thing to say that crime should pro- bailiff, and to perform other services, in the duce privilege. The crime produces the lia-place of another person, who had been embility; then the privilege follows as a necessary ployed by A., and had been paid 12s. a consequence. [Alderson, B.-You must first make out the liability. I do not see that an adultress need have credit.] Lord Abinger, C. B. There is no instance of a married woman suing in her own name, because she lived in adultery. I think there is no ground for the application. Parke, B. Marshall v. Rutton, 8 T. R. 545, is directly opposed to this application. The privilege contended for is confined to cases where the husband is civiliter mortuus. Alderson, B. That is giving to the innocent wife a privilege in consequence of her husband's crime; but why give such a privilege to a guilty woman, the husband being innocent?-Rule refused. On a subsequent day, Lord Abinger, C. B. gave the following judgment, as to the costs of the application. week. A. continued in B.'s service for more than 12 years; but there was no payment of rent on the one hand, or of wages on the other. recover wages for 12 years, deducting the A. brought an action to rent; and it was held, that this was not such an open account as would take the case out of the Statute of Limitations, since the 9 G. 4, c. 14; but that there must be a part payment in cash, or what is equivalent to it, to have that effect. It as to what will be held to be a part pay- с The bankers ought to have their costs; but whether they have them from the plaintiff, or out of the fund, is immaterial. It is not clear that the plaintiff would have succeeded against them, since he did not deposit the money with The latest case on the subject is Waters them. As to the costs incurred by the trus-V. Tompkins, by which it was decided, that tees, if they had made a bona fide defence, and the meaning of part payment, to take a applied the money as they honestly thought case out of the Statute of Limitations, is best under the circumstances, it would hardly payment of a smaller, on account of a have been fair to say that they should bear greater sum of money, due from the party these expenses. But the learned Judge states, making the payment to the party to whom and the facts shew, that they proceeded, not it is made. The appropriation of such part bona fide for the benefit of the cestui que trust ; but for the purpose of paying their own bill payment of principal, or of payment of That being the case, we think they ought to interest to a particular debt, may be shewn pay the costs of the Interpleader rule, and to by any medium of proof, and does not rebear the expenses they have incurred in these quire an express declaration of the debtor proceedings. The other Judges concurred.Rule absolute; the plaintiff to pay the costs it may therefore be proved by previous or at the time of the payment, to establish it: of the bankers, and to be repaid by the defendants. Agar v. Blethyn, 2 C. M. & R. 699 subsequent declarations of the debtor, al1 Tyr. & G. 160. though the fact of the payment must be proved by independent evidence, and although a verbal acknowledgment of part payment of a debt, or of payment of interest thereon, is insufficient, within the 9 G. 4, c. 14, s. 1, to take the case out of the Statute of Limitations; yet if the payment of a sum of money is proved as a fact, and not as a mere admission, its appropriation to a particular account, whether in respect of principal or interest, may be shewn by ment; and such declarations need not have declarations of the party making the paybeen made at the time of such payment. Whether the date of an acknowledgment of debt made in writing, pursuant to the 9 G. 4, c. 14, s. 1, can be proved by extrinsic oral evidence, quære.d ON THE CONSTRUCTION OF THE STATUTE OF LIMITATIONS, 9 G. 4, c. 14. SEVERAL cases have recently been decided on the construction of Lord Tenterden's Act for amending the Statute of Limitations, 9 G. 4, c. 14, by which it is enacted, that to take a subsequent promise to pay a debt out of the statute, it is necessary that it should be in writing, signed by the party chargeable thereby. In the case of Williams v. Griffiths," a A. occupied a house and land under B, at the rent of 167. a year; and A, at B.'s request, 2 C. M. & R. 45. Tyr. 772. e 1 Tyr. & G. 137; 2 C. M. & R. 723. A Manual for Articled Clerks and other Law Students. Part II. Containing Courses of Study in Common Law and Special Pleading; with Questions adapted to the intended Examination; Advice on the Course of Business; Attending Law Lectures, &c. with the New Rules, and Notes, explaining the Course to be adopted for Examination and Admission; Forms of the New Notices, Affidavits, &c. Published for the Proprietors of " The Legal Observer," by Richards & Co. 1836. We have now completed the Second and concluding Part of the Articled Clerks' Manual. This Second Part comprises the following subjects: Appendix of Forms under the New Rules: Notice of Examination.-Notices of Admission.-Affidavit of Service of Notices. An Epitome of the Law relating to Patents for Inventions, as altered by Statute 5 & 6 W. 4, c. 83; with an Appendix of Statutes, Forms, &c. By John William Smith, Esq. of the Inner Temple, Barrister at Law. A. Maxwell. THIS is, we think, a useful abridgment of the Law of Patents, including the recent Act, illustrated by careful and judicious Notes. Publications of this kind are very convenient for practitioners. Mr. Smith has, in short compass, and in a well-arranged manner, stated all that the subject requires for practical purposes. Since the work was published, an Addendum has been printed, comprising the Rules of the JuChapter VIII. A Preliminary Sketch on the Examinations into the Fitness and Capa- dicial Committee of the Privy Council, and city of Attorneys :-Statutes of 1403, 1445, some Notes, from which we make the fol1606.-Rules of Court of 1617, 1633, 1654.-lowing extract: Statutes of 1729, 1822-3.-New Rules, 1836. The proviso described in the text, is con"Chapter IX. A Course of Study of Com-tained in almost all the patents now in existmon Law-Active Practice.-Intervals for ence, the validity of which consequently deoccasional reading, how to be employed.-pends upon the due observance thereof. But Books recommended.-Method and System.- very lately the following clause has been substiElementary Books.-Business of Law Offi- tuted for it :ces. The principal Steps in an Action at Law.-Practical Directions.-Examination of Witnesses. Preparing Briefs. — Trials. Questions in Practice.-The Long Course.Common Law Treatises.-The Short Course. -Books to be read.-Questions in Common Law, with References to the Books for An Provided nevertheless, and these our letters patent are upon this express condition, that if at any time hereafter these our letters patent, or the liberties or privileges hereby by us granted, shall become vested in or in trust for more than twelve persons, or their representatives, at any one time as partners, dividing or entitled to divide the benefit or Chapter X. A Course of Study in Spe-profits obtained by reason of these our letters cial Pleading, with an Outline of its Nature: patent, reckoning executors or administrators -Definition of Pleadings.-Their several kinds.-The Declaration.-Joinder of Parties. -Joinder of Causes of Action.-Pleas.-Demurrers.-Questions on Special Pleading, with References to the Books for Answers. swers. 66 44 as and for the single person whom they represent, as to such interest as they are or shall be entitled to in right of such their testator or intestate; that then these our letters patent, and all liberties and advantages whatsoever hereby Chapter XI. Advice to Articled Clerks, granted, shall utterly cease, determine, and on the Course of Business in an Attorney's become void, any thing hereinbefore contained Office:-Duty of Attorneys to instruct their to the contrary thereof in anywise notwithArticled Clerks. Time for reading.-Office standing, provided that nothing herein conDrudgery.-Details of Business.-Professional tained shall prevent the granting of licences Habits. Punctuality, &c.-Letter-writing. in such manner and for such consideration as Business Lists. Daily arrangements.-Entries they may by law be granted.” of Business.-Preserving Papers.-Accounts. "Chapter XII. On the Utility of attending Law Lectures, and keeping a Common-place or Note Book :-Greater Impression of oral Lectures.-Time occupied in Attendance.- The above alteration does not result from Taking List of Decisions.-Note the leading any act of parliament, but is made in exercise Doctrines. Read Authorities. Common- of the power inherent in the crown to modify place Book: Extracts.-Abridgment.-Refer- the form of its grant as it thinks fit. The clause binding the patentee to supply articles for the King's service at prices to be fixed by the Master of the Ordnance, is (in many patents) omitted. It may be observed, that whatever doubts may heretofore have existed (and considerable doubt did exist) as to the right of the patentee to grant an unlimited number of licences, it seeins that there can be none as to the right of the holder of a patent containing the new clause above set forth to do so." |