2 Changes in the Law, No. IV.-Practical Points, No. XXXIII. that after thirty years enjoyment, claims of therein mentioned. And by § 2 it is enact ed, that every composition for tithes made or confirmed by the decree of any Court of Equity in England, in a suit to which the ordinary, patron, and incumbent were parties, shall be valid; and that no modus or exemption shall be within the act unless it shall be proved to have existed within one year next before the passing of the Act. By § 3, it is provided that the Act shall not be available in any suit now commenced, or which may be hereafter commenced during the present session of parliament, or within one year from the end thereof. The act is not to extend to any case where the tithes of any lands shall have been demişed for any term of life or number of years, or where any composition shall have been common, and other profits a prendre, shall not be defeated by shewing that they were first enjoyed at any period prior to the thirty years; but such claims may be defeated in any other way by which the same are now liable to be defeated; and when such rights shall have been enjoyed for sixty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some agreement expressly made for that purpose. By § 2, no claim of right of way uninterruptedly enjoyed for twenty years, shall be defeated by shewing that such way was first enjoyed at any time prior to such period of twenty years; but it may be defeated in any other way: and when such way shall have been enjoyed for the full pe-made, and such demise or composition shall riod of forty years, the right shall be deemed absolute, unless it shall appear that there was some agreement expressly made for the purpose. By 3, the use of light for twenty years without interruption, shall be deemed absolute, any local custom to the contrary notwithstanding, except there be an agreement in writing to the contrary between the parties. be subsisting at the time of passing this Act, and where any action shall be instituted for the recovery of the tithes in kind within three years next after the expiration of such demise or composition (§ 4). The time during which lands shall be held by persons entitled to the tithes thereof, shall be excluded in the computation under this Act (§ 5), as also the time during which any person capable of resisting any claim shall be under disability (§ 6). These are both useful Acts, and will be found of much importance in practice. PRACTICAL POINTS OF GENERAL No. XXXIII. ANNUITY OBTAINED BY MEDICAL MAN. Tithes were another species of property to which the statutes of limitation did not apply. The hardship of this exception, even upon the clergy, has been repeatedly pointed out, and by none better than the Real Property Commissioners, in their third Report. A partial measure on this subject also has been passed into law, with respect to claims of modus decimandi, and entire exemption from tithes. Before the passing of the late Act, a modus, to be valid, must be deemed to have subsisted from the reign of Richard the First; and if it could be proved to have commenced after that period, it would fail. And it was also the settled law A DEED obtained by a medical man, or by of the land, that nonpayment of tithes for any period, however long, was no ground any professional adviser, will always be looked of exemption. By the 2 & 3 W. 4. c. 100a, a on with suspicion. See Maccabe v. Hussey, very considerable alteration as to these rights 2 D. & Cl. 440; and DIG. for 1832, 87. The is made; and it is enacted (§ 1), that all pre- following case is in conformity with this rule: scriptions and claims of any modus, or of any exemption or discharge of tithes by composition real or otherwise, shall be sustained and be held valid upon evidence shewing-in cases of modus, a payment of such modus; and in cases of exemption, the enjoyment of the land without payment of tithes for the full period of thirty years next before the time of such demand, except under the particular circumstances a Printed in Monthly Record for October. This was a bill by the executrix of the late Colonel Popham against the defendant Brooke, praying to have a deed and bond by which Colonel Popham had secured to the defendant an annuity of 100%. for the term of his the defendant's life, delivered up to be cancelled. Colonel Popham having had an apoplectic attack in India, returned to this country for the benefit of his health, in a ship belonging to the East India Company, of which the defendant was surgeon; and during the voyage, in the course of which he had another apoplectic attack, he enjoyed the benefit of the defend Review: New Editions of Watkins's Conveyancing. 3 ant's professional assistance. The ship arrived [ consideration for so large a gratuity; whereas at Gravesend on the 5th of July, 1824, and Colonel Popham must have been then in the the defendant attended Colonel Popham to hope of a prolonged life. Under such cirLondon, where they arrived on the 7th of cumstances, it would have been the bounden July, and resided at an hotel. On the 8th of duty of the defendant to have declined a comJuly, Dr. Nevinson was sent for by the de-pensation of that character, even if Colonel fendant, to give his opinion on Colonel Pop-Popham had pressed it upon him, and had ham's case. Being examined as a witness in been in truth capable of business. If, howthe cause, Dr. Nevinson stated that he found ever, the capacity of Colonel Popham on the Colonel Popham incapable of business, uttering 12th of July, when the deeds were executed, monosyllables only, and that, too, with difli- had been a material ingredient in the case, is culty, and labouring under a diseased organi- it possible that such capacity could be assumed, zation of the brain. Dr. Nevinson, on that consistently with the evidence of Dr. Nevinson occasion, informed the defendant, that the and Mrs. Popham, which applies to the 8th of Colonel could not recover, or live long. Either July. The plaintiff is entitled to a decree acon the same 8th of July, or on the day pre-cording to the prayer of the bill, with costs. ceding, the widow of General Popham, the Popham v. Brooke, 5 Russ. 8. uncle of the Colonel, and by whom he had been brought up, called at the hotel to see Colonel Popham, and being examined as a witness, she stated in her evidence that she there saw the defendant, who informed her that the Colonel was in a deplorable state, and not fit to see his relations, and that, in the opinion of the defendant, the Colonel could not live more than a month or six weeks: that she inquired of the defendant whether Colonel Pophamn had received a note which she had written to him the day before; that the defendant answered, that he the defendant had received the note, but had not communicated it to the Colonel, because he was incapable of understanding, of reading or of writing. On the 12th of July, the deed and bond in question were executed by Colonel Popham, REVIEW. Principles of Conveyancing, by Charles Watkins, Esq., of the Middle Temple, Barrister at Law. With Annotations by George Morley, Richard Holmes Coote, and Thomas Coventry, Esqrs., Barristers at Law. Seventh Edition, revised and enlarged. By a Barrister of the Middle Temple. Saunders & Benning. 1831. Principles of Conveyancing, by Watkins. Eighth Edition, with large additions; containing the Law relating to the Creation and Transfer of Estates and Interests in Real and Personal Property. By John Merrifield, Esq., of the Middle Temple, Barrister at Law. Maxwell. 1832. whereby, in consideration that the defendant would remain with the Colonel during the remainder of his life, as his medical assistant, the Colonel secured to the defendant an annuity of 100. for the life of the defendant. Colonel Popham and the defendant remained at the hotel in London until the end of August, and then went together to the house of an aunt of Colonel Popham's, in the country, A GOOD student's book on Conveyancing where Colonel Popham died, in the following remains still to be written. The second October. The attorney who drew the deed, volume of Blackstone, with all its faults, is and who till then was a stranger to Brooke, still the very best, as yet, in the hands of the deposed that Colonel Popham perfectly under-profession; but it is almost necessarily destood the nature of the instruments before he fective in some parts, and incorrect in others; executed them, and was capable of business at the time. Several relations of Colonel Pop- besides, that as its eminent author was not ham, who saw him in the country, gave evi- himself a conveyancer, he could not remove dence, as to the care and attention with which many of the doubts and difficulties on the the Colonel was attended by the defendant; subject, which are only discovered in prac and that, in their judgment, Colonel Popham tice. The work of Mr. Burton, whilst it was capable of understanding the effect of the displays great powers of condensation and instruments. On the part of the defendant, indefatigable industry, (which last is said the case was rested on the capacity of Colonel Popham, and on the sacrifice which the de- to have cost its amiable author his life, fendant had made in giving up his situation when just at the commencement of his as surgeon to the East India ship, for the pur-career,) is so deficient in its arrangement pose of fulfilling his part of the contract. as to render its first perusal difficult, and The Master of the Rolls said, If it were ad- almost repulsive, to a mind new to the submitted that Colonel Popham was of capacity ject. The work of Mr. Watkins, although to understand, and did perfectly understand, the nature and effect of these instruments, they sufficiently popular, we place below both these. As originally written, it did very could not be maintained by the defendant under the circumstances, as the defendant well little to smooth the difficulties of the stuknew that he was in fact giving little or no dent, commencing by a violent attack on Review: Watkins's Conveyancing.-Proposed Reforms in the Court of Chancery. It the existing law, and carrying it on through- | lazy, he will find himself saved much trouble out the rest of the work. It is neither by the labours of Mr. Merrifield. We scientific nor practical in its arrangement. should say, however, that what he has done The points are not presented in a way calculated to fix themselves in the mind. has, however, been generally employed as the only book absolutely written for the purpose, and has been from time to time improved by the additions of various editors, with one exception (that of Mr. Preston) however, appended in the form of notesalways an awkward mode of conveying information for a student, as it distracts his attention, and prevents his taking a general and uninterrupted view of the subject. The labours of some of the editors have been, however, of much value, more particularly the notes of Messrs. Morley and Coote, which, as far as they go, are not surpassed, either in style or information, by any legal writer. The two editions now before us are both very recent. The first contains the notes of Messrs. Morley, Coote, and Coventry, all of which were given in a former edition, and the additions of a Barrister, who, as he chooses to keep his visor down, we shall not name. The labours of this last gentleman are not very remarkable either in extent or information. They appear to us, however, to be generally correct, and to be derived from the proper authorities, and to shew no improper appropriation of the labours of others-a fault, we are sorry to say, but too common. One or two remarks, however, have occurred to us. In the note on terms of years, the doctrine and cases on the presumption of surrenders of terms of years are barely referred to. They should have been more fully given. In the note to the chapter on Coparceners, no allusion is made to the doctrine of warranty on a partition between coparceners, which gives rise to important results in practice. On the other hand, we are much pleased with the tables which the editor has introduced in p. 233, shewing how uses will be executed under the statute, which will be useful to the student. The edition by Mr. Merrifield, being just published, has the advantage of being the last. We are inclined to think, however, that he has somewhat overloaded the work. His notes shew considerable industry, and a tolerable knowledge of the existing information on the subject. He has freely availed himself of the well-known treatises on the various chapters contained in Mr. Watkins's work, and reduced them into notes to be appended thereto. In short, if a student be for the public, the student should do for himself; and we doubt whether the old matter, with the slight modal differences which Mr. Merrifield has made (for we find no new views taken), will obtain any very considerable success; nor can we say that he has, in every instance, given all the necessary information. Thus, in p. 14, although expressly writing on the merger of terms for years, he omits to state that they may merge in one another, but mentions it (p. 509) under the head Surrenders of Terms. In treating of the requisites to the estate of joint-tenants, he dwells only on those which relate to the estate at common law, without stating the different rules under the Statute of Uses. In general, however, the learned editor is correct, and perhaps less likely to mislead the student than a more ambitious writer; and as such, we recommend the work to our readers. PROPOSED REFORMS IN THE DELAYS IN THE MASTERS' OFFICES. We have received a pamphlet, addressed to the Suitors of the Court of Chancery, from Mr. R. M. Hume, a solicitor of the Court, which appears to be deserving of notice. It proposes a remedy for the delays in the Masters' offices. The writer commences with observing, that the grievances under which the suitors labour are two-foldthat which arises from the delay in the hearing and deciding of suits-and the delay and expence of proceedings in the Masters' offices;-and he observes, that the delay in the former, by a separation of a portion of the jurisdiction, has been partially removed, and a diminution of expence in the latter is contemplated. But for the delay in the Masters' office no remedy is at present proposed. Indeed a new jurisdiction about to be conferred on the Master-which, though it will further relieve the delay in Court-will tend to increase the delay in the Masters' offices. His object, therefore, is to point out the nature and cause of the delay under the jurisdiction of the Masters in Chancery, and the remedy. The delay, he contends, is occasioned en Proposed Reforms in the Court of Chancery. tirely by the overcharged extent of the business in the Masters' offices, the want of a sufficiency of Masters to dispose of it, and the nature of the practice which governs the proceedings before the Master. 5 which is returnable on the day but one following the lodging of the document. This warrant is to give notice to the other party or his solicitor of the state of facts having been left, that a copy of it may be inspected. On the return of the warrant on leaving, a warrant to proceed on the state of facts is taken, returnable at the earliest possible time before the Master. The Master sits from ten to four o'clock. The warrant must be taken out for one of those hours on a future day. Many references in Master for investigation at the same time: and many different suits are pending before the it frequently happens, that a warrant or appointment cannot be obtained earlier than a week or ten days from the time of application. The appointed time arrives, the matter is proceeded on before the Master, but before the question can be decided the hour has expired, the next suitor has his appointment, and the discussion must stand adjourned. Another warrant for a future day is applied for and obtained-the business must be entered into de novo, for the parties have probably forgot the particular point at which the matter was discon The solicitors, he continues, have been accused of causing this delay, and the Masters have not been spared. Neither, he says, are to blame. It is the weight of the the business and the nature of the practice which are the true causes of the delay. He speaks from experience, of the constant and unvaried anxiety of the Masters to forward the business before them-and to them, he alledges, no blame ought to attach. With respect to his professional brethren, he maintains, that there can be no temptation to delay; for whether the suit is terminated within six months or six years, no greater profit is acquired by the solicitor; but in fact a great disadvantage is suffered, by the outlay of capital and time, while enduring at the same moment, the charge, unjust be-tinued at the former attendance: and ere a cause untrue, of procrastination and delay. After some further remarks, he proceeds to state his suggestions for the removal of the still existing delay in the Masters' offices: First, he proposes,―That the Lord Chancellor should be empowered to nominate, any number not exceeding four, decision can be arrived at, again the appointment of another suitor interferes-and the business must be still adjourned. Thus appointment, after appointment, becomes nugatory. The state of facts drags on its weary weight, week after week, month after month, until the long vacation arrives,—and then the business must be postponed until the following term, and another year teems with the same dilatory mode of procedure. If this is the case in regard to a single inquiry in a suit-it can Second-That the practice of hourly at- be readily imagined that the delays are intendances before the Masters be dis-tolerable where there are many inquiries in the continued, and in lieu of that mode of attendance, that each matter of business be heard by the Master in regular routine, in the same manner as cases are heard and disposed of in Court. additional Masters. In order that the nature and cause of the delay may be understood, he briefly details as follows, the practice now prevailing. same suit-and year after year passes on, in that labyrinth of delay and procrastination— which withers the hopes of the suitor,-and renders the Court of Chancery a curse instead of a blessing to the country. "The extent of the business in the Masters' offices, and the present mode of performing it by hourly warrants, are the true cause of the delay. If there were a sufficiency of Masters would be to the advantage of the suitor-for it would be disposed of effectually, without the delay of unfinished attendances-at irksome and injurious distances from each other. If this mode was adopted, each suitor would have the advantage of his suit being brought to a conclusion in the Masters' offices, weeks, months, and years earlier than is the case according to the present practice." to execute the business-each matter of business could be continued in discussion and "A decree is made in a suit between litigat-hearing before the Master at a single attendance, ing parties. Before a final decree can be made, until it was disposed of-and although the matit is essential, that certain facts or circum-ter might continue for several hours, still it stances be inquired into by the Master, and accordingly it is referred to the Master in ordinary in rotation, to call the parties or their solicitors before him, in order that evidence may be adduced in support of or against the particular case, upon which the Master is to give an opinion. The solicitor for the prosecution of the inquiry prepares and leaves in the Master's office a statement, called a state of facts, containing a detail of the circumstances and facts, to which the attention of the Master is to be drawn, and upon which he is to decide. This state of facts is supported by the affidavits or examination of witnesses. The solicitor, on leaving the state of facts of his client, takes out a warrant, termed a warrant on leaving, In support of his proposal for an increase in the number of Masters, Mr. Hume observes, that the extent of the business of the Court of Chancery a century back, bore no The comparison to its present extent. questions which then occurred were few. 6 Chancery Reform.-Laws of Dramatic Literature. For many years past, matters of the greatest intricacy and difficulty have been in question, involving all the refinements of equitable, conveyancing, or mercantile law. The Masters 100 years since were eleven in number, for the Accountant General then, and for many years, acted as a Master in ordinary. Now there are but ten Masters, for the labours of the office of Accountant General give that officer full employment, and his being considered a Master is merely nominal. If the business of the Court 100 years since required eleven Masters, he contends, that when the business is increased to, at least, ten times its former extent and • intricacy, ten Masters are wholly inadequate to perform it. will be induced to arouse the attention of the legislature. For the present, we lay before our readers, as a branch of this subject, the Report of a Committee of the House of Commons, on the Laws Affecting Dramatic Literature. 1. In examining the state of the laws affecting the interests and exhibition of the drama, the committee find that a considerable decline, both in the literature of the stage, and the taste of the public for theatrical performances, this decline, in addition to those which have is generally conceded. Among the causes of been alleged, and which are out of the province of the legislature to control, the committee are of opinion, that the uncertain administration of the laws, the slender encouragement afforded to literary talent to devote its labours We think, however, that before any new towards the stage, and the want of a better leMasters are appointed, it should be ascer-tribution of theatres, are to be mainly consigal regulation as regards the number and distained by a change of practice whether the present Masters are not competent to the 2. In respect to the licensing of theatres, the discharge of their duties. committee are of opinion, that the laws would We believe that the suggestion of con- be rendered more clear and effectual by continued hearings before the Master, in pre-fining the sole power and authority to license ference to hourly warrants, has been already brought forward; but Mr. Hume is entitled to thanks for thus forcibly calling attention to the necessity of an alteration. Having thus adverted to one material branch of reform, we may take the opportunity of noticing another, which is briefly pointed out in the following letter of a correspondent: SIX CLERKS' OFFICE. dered. in places of royal residence) to the Lord Cham- I have read in your number for October 13th, the plan of the Chancellor's reform in this Court, which, from the tenor of your observations, would seem to comprise the whole of his Lordship's plan. Has his Lordship forgot the Six Clerks Office-that thorn in the side of the solicitor, and through him of his client? I believe his Lordship, in the early part of 1831, promised to bestow his attention on this, among other Chancery abuses, as to which, allow me to refer you to Vol. I. L. O. p. 258. I do not 3. The committee believe that the number say this from want of gratitude for the boon al- of theatres thus licensed (although they might ready bestowed; but rather that we may not be more conveniently distributed) would suflose the benefit of his Lordship's powerful ex-fice for the accommodation of the public, in ertions; for, I dare say, it will be some generations hence ere the cobwebs of the Court will be again disturbed as they are at present. the present state of feeling towards theatrical performances, and also for the general advantages of competition; at the same time, as theatres are intended for the amusement of the public, so the committee are of opinion that the public should have a voice in the number of theatres to be allowed. And the com LAWS OF DRAMATIC LITERATURE. mittee therefore submit, that if a requisition, WE intend, by the commencement of the next Session of Parliament, to consider the defects in the Laws of Literary Property; and we trust the public press in general signed by a majority of the resident householdbe presented to the Chamberlain, praying for ers in any large and popular parish or district, his license to a new theatre in the said parish or district, the Chamberlain, should be bound to comply with the public wish. The com |