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Answers to Queries.

divided between them) they would undoubtedly
take as tenants in common. See Eq. Ab. 291;
1 P. Wms. 17; 3 Rep. 39; 1 Vent. 32.
H. A.

LIMITATION OF LANDS. P. 228.

1. I am of opinion, that A. and her children, born at the time of the limitation, take an estate in common, 4. for life, (reversion to the grantor) and the children in fee. The children born subsequent to the limitation are not entitled to any interest in the lands, on the principle that a freehold cannot be made to commence in futuro.

S.

2. I see nothing in this limitation to take it out of the rule laid down in Wild's case, 6 Rep. 17: so that if A. had no children at the time the limitation was made, she will take an estate tail; but otherwise, if she had children, she will take with them a joint estate in fee. Oates d. Hutterley v Jackson, 2 Stra. 1172. See also Buffer v. Bradford, 2 Atk. 220.

A. B.

3. There is considerable ambiguity in the construction of a limitation similar to the one in this query. It has been held, that a gift "to A. and her chlidren and their heirs," (she having children) gives A. and her children joint estates in fee; and that a gift "to 4. and to her children, and their heirs," gives A. an estate for life, with remainder to her children in fee. In the case in question, I think A. would first take for life, and then her children in fee; for if they were all to take jointly, the interest of the parent would be continually diminished by the birth of every new born child. W. J. C.

291

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Taking A. and B. not to be baron and feme, or persons who may not lawfully intermarry:-in the first case, A. will take an estate tail executed in one moiety, and the heirs of B. will have a contingent remainder in tail in the other moiety. 2 Roll. Abr. 417, pl. 4. And A. may, by suffering a recovery, defeat the limitations over. In the second case, A. will be tenant for life of the entirety, with the inheritance in tail in a moiety; and B. will be tenant for life in remainder of the entirety, with the inheritance in tail of the other moiety. And they in conjunction may suffer a recovery of the entirety, A. making the tenant to the præcipe, and A. and B. being both vouched. Powell on Devises, by Jarman, 2 vol. p. 457 But supposing A. and B. to be baron and feme, or persons who may lawfully intermarry, the subsequent limitation, in the first case, will not vest in the ancestor taking the estate for life, but is a contingent remainder to the heirs of the body of both baron and feme. And in the second case, the ultimate limitation is not executed in possession, but gives a joint remainder in tail to baron and feme. Fearne's Cont. Rem. p. 36 and 37 A. B.

4. If, at the time of the devise, A. had no children, she will be tenant in tail; Wild's case, 6 Rep. 17; but if she had any living at the making of the will, she will take jointly ELIGIBILITY OF QUAKERS TO SIT IN PARLIwith them an estate in fee; Oates d. Hatterley v. Jackson; 2 Stra. 1172.

HUSBAND AND WIFE. P. 228.

E. M.

1. Certainly; but not so the purchaser; for as the agreement was made for the sale of the wife's estate, the contract cannot be enforced by the purchaser without the wife's consent.

P. Q. 2. The wife may, I conceive, enforce the performance of the contract made by her deceased husband. The purchaser might have filed a bill for specific performance against the husband; and therefore, there can be no objection, on the ground of want of mutuality between the parties.

W. G. C.

VOLUNTARY CONVEYANCE. P. 211. If your correspondent "E. W.," will turn to Vol. I. Madd. Cha. 271, he will find it laid down as fully settled that a voluntary settlement, however free from fraud, is void against a subsequent purchaser for a valuable consideration, although such purchase made with notice of the settlement; and in a subsequent

AMENT. P. 210.

In answer to your correspondent "A Durham Elector," respecting the eligibility of a Quaker to sit in Parliament without first taking the oaths of allegiance, &c. it will be found, by the 9th James 1, c. 6, that no member shall be allowed to sit in the House of Commons, till he has taken the oaths of allegiance, &c. And by 30 Cha. 2. stat. 2, and 1 Geo. 1, c. 13, that no member can vote in either House, till he has, in the presence of the House, taken the oaths of allegiance and supremacy. The above are particularly repealed, so far as regards the oath by a Quaker, and in the place thereof is substituted affirmation. By the 22 Geo. 2, c. 46, § 36, it is expressly stipulated, "That in all cases wherein, by any act or acts of parlia ment now in force, or hereafter to be made, an oath is, or shall be, allowed, authorised, directed, or required; the solemn affirmation or declaration of any of the people called Quakers, &c. shall be allowed and taken instead of such oath, although no particular or express provision be made for that purpose in such act or acts.

J. J.

292

Queries.-Miscellanea.—The Editor's Letter Box.

QUERIES.

Common Law.

QUARTER SESSIONS.-WITNESSES.

A general rule of quarter sessions in Lincolnshire is, that the appellant parish shall bring up a pauper to be examined on the hearing of an appeal. Several subpænas have been served upon a pauper. His expenses have been tendered over and over again; and still he declines, and positively refuses attending. What is to be done to compel the pauper to appear? Can the appellant parish officers, or any other parish officers, adopt forcible measures to bring him before the Court? Or how, or in what manner is his attendance to be enforced.

STAGE COACH PASSENGER.

J. J.

his brother jurymen, and the people who were present, that all the witnesses who had given such decided evidence against the prisoner, were engaged in a conspiracy against his life, and that all the evidence which they had previously given, with such apparent consistency, was utterly unfounded. The prisoner was accordingly acquitted, without a dissentient voice; and the young Brahmin was publicly applauded for the great acuteness and perseverance with which he had elicited the truth and confounded the artifices of those who had conspired against the life of the prisoner. Sir Alexander Johnston, who presided in the Court on the occasion, was so much struck with the talents which the young Brahmin had displayed throughout the trial, that he sent for him after the trial was over, and asked from him the nature of the education which he had

A gentleman travelling by coach is greatly received, and the course of studies which he annoyed and ill-treated by another passenger had pursued. The young Brahmin, in reply, I shall feel obliged by any of your correspon-informed Sir Alexander, that he attributed dents informing me the most advisable and practicable legal measures to be adopted in any skill which he might have shown in exasuch a case, to obtain redress. On the coach-to the nature of his education, which had been mining the witnesses at the trial, not so much man tendering him his fare, could he be legal- the same with that of most of the other Brahly turned off the coach? Could he be taken into custody by a constable? And as no per-procured while he was travelling through the mins, as to the study of a work which he had son knows who or what he is, or where he comes from, or where going to, would not the law fail in every point of view in this particular

case?

J. J.

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peninsula of India, and which he frequently perused and studied, because it had strengthened his understanding more than any other work which he had ever read. Upon examining this work, it was discovered to be a short summary of the Dialectics of Aristotle, which had been translated from Arabic into Sanscrit, and been copied upon a few plane leaves in the Devenageric character.

THE EDITOR'S LETTER BOX.

Lawyers in Parliament.-We have to add to our List the name of Mr. James Cornish, a Solicitor, at Totness, in Devonshire, who has been returned for that Borough. We are asked whether Mr. Parrott, his colleague, is, or has been, of the same profession.

A Brahmin of one of the northern provinces of Ceylon, was tried some years ago by a jury of Brahmins of the same province, on a charge Second Real Property Report, which related In reply to F., we have to state, that the of having murdered one of his own relations, with a view, after his death, of getting posses-reviewed in our First Volume, and the subject solely to the General Registry Question, was sion of his property. All the witnesses who were examined at the trial gave such decisive evidence of the prisoner's guilt, that the jury were about to find the prisoner guilty; when a young Brahmin, who was one of the jurymen, stated to the Court that he entertained consi

derable doubts of the prisoner's guilt, and therefore requested that all the witnesses might be called back again into Court, and that he might be permitted to examine them. Although every one of the jurymen, with the exception of the young Brahmin himself, were fully convinced, from the nature of the evidence which had been given, of the guilt of the prisoner, the Court acquiesced in the

has been so amply discussed throughout the the Report at large. We are not aware that Work, that we deemed it unnecessary to print any other material Report has been omitted.

There may have been some inaccuracy in classing and numbering the Lectures of Professor Park, but we believe that all the Introductory Lectures have been given in the Monthly Record or Supplement; and we hope the state of health of the learned Professor will

soon enable us to continue the series.

The Letter on Provisional Assignees of In

solvent Debtors' Estates, shall have our atten

tion.

cuniensis"; R. M.;
The Queries and Answers of J. B.; "Man-
"An Old Subscriber";

application; and on the witnesses being brought back again into Court, the young J.L. B.; "A regular Subscriber;" J. G. B. ; and skill, that he in a very short time satisfied andJ, L., we hope to find room for next week.

Brahmin cross-examined them with such talent

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PROCEEDINGS IN PARLIAMENT.

CHANCERY LUNATICS.

THE Chancellor has commenced his plan of Chancery Reform by the revival of his Lunatic Bill, which we have already printed a. We have always approved of this measure, which relates entirely to Chancery Lunatics, the treatment and management of all other insane persons being regulated by the 2 & 3 W. 4, c. 107. By this Bill, it is intended that the Chancellor shall be empowered to direct a commission, in the nature of a writ de lunatico inquirendo, to any one person, who may issue precepts to the sheriff to summon a jury, and compel the attendance of witnesses and the alleged lunatic. It is intended, by means of this provision, in future to direct the commission to a single Judge, sitting at nisi prius, and thus to lessen the enormous expense now attending a contested lunacy. With the cases of Davies, and Bagster fresh in our recollection, we should have hardly thought that this measure would have been opposed by any person, not personally interested in its continuance. Whatever the merits of the present Commissioners may be, we must confess we greatly prefer the unassisted power of Lord Lyndhurst, Mr. Justice James Parke, or Mr. Justice Patteson, or indeed any other of the fifteen Judges, to the triple exertions of the former learned persons; for which preference we need give no other reason than that a Judge

NO. CXXV.

a 2 L. O. 388.

of the Superior Courts of Common Law is constantly in the habit and practice of presiding in similar enquiries, and must therefore possess greater capabilities for their despatch than gentlemen, either practising as barristers or practising not at all. We also fully approve of that part of the Bill which provides for the appointment of Visitors, for the inspection of Chancery lunatics.

Lord Wynford objects to the Bill, inasmuch as a single Commissioner may be taken ill, in which case a fresh commission must be directed to some other person; but this objection would apply to the whole system of our Circuits, and Nisi Prius. His Lordship also seemed to suppose that it was the duty of Masters in Chancery personally to superintend the care and treatment of lunatics,-in which, however, we beg to assure him he is in error.

Lord Eldon is at least consistent with himself. "He was not prepared to go into the subject fully at that moment;" [the Bill has been before the House upwards of a year] "but if the House could delay its decision till next week, he would think it his duty to lay before it all the information in his power."

The Lord Chancellor, we confess, to our mind completely answered all objections urged against the measure; and we were happy to hear the conclusion of his speech. He again reiterated his determination to abolish all useless offices in the Court in which he sate. He at the same time declared his determination to introduce the proposed measures, although it might be necessary to create new and useful places.

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LIAMENT.

with moderate pay and plenty of work. THE ELIGIBILITY OF QUAKERS TO SIT IN PAR"Measures had originated with him before he took office, and before he could have had the least shadow of an interest in the disposal of patronage, which measures were afterwards adopted by a government to which he was opposed, and which filled the places created under them by persons in whom he could not be thought to repose the utmost confidence. Nevertheless, he

up

then proceeded in the discharge of his duty, without being biassed by any such consideration, and offered no impediment to the then ministers in that respect. As he had acted then, he should continue to act now, and propose measures of public utility, without reference to patronage or to the creation of office, and without stopping to consider who was to profit by it, so long as the public interest was promoted."

So long as the Lord Chancellor shall act on these principles, he may be sure that he will be supported by the profession, and that he has nothing to fear in the prosecution of measures founded on them. We await, however, with anxiety, the introduction of his new Bills for Chancery Reform.

CHURCH REFORM IN IRELAND.

In a former number b, we have proved that, according to the original institution of Tithes and established precedents, the public have the right of remodelling the existing Church system, and making such appropria

This subject has been already discussed by some of our correspondents d. The Committee appointed by the House of Commons to consider the subject, have already made their report, which, however, we have not yet seen. According to the unanimous vote of the House, Mr. Pease will be admitted a Member on his affirmation. The words of

the statute 22 Geo. 2, c. 46, § 36, appear to us sufficiently comprehensive for the purpose of admitting a Quaker into Parliament, although we have no doubt that such an extension of its provision was not contemplated by the legislature. It is to be remembered, however, that a recent statute (9 Geo. 4, c. 32) has been passed to relieve them from disabilities, by which they are enabled to give evidence in a criminal case. Even before that statute, a Quaker's affirmation was admissible in debt on a penal statute e, although not admissible to support a criminal charge f. It has been decided that a Quaker may be admitted to his freedom on his affirmations, although he cannot bear any office or place of profit under government. We shall probably be able to put our readers in possession of the Report, in an early number.

PROPOSED SUBSTITUTE

FOR

session of every kind of information on the DESIROUS that our readers should be in possubject of a General Registry of Deeds, we subjoin the Plan of Mr. Robert Gream Hall, by which a Substitute for the General Registry Office is proposed, by Indorsements

on Title-Deedsa.

The pamphlet to which we refer enters

tion of her property as necessity may re- A GENERAL REGISTRY OF DEEDS. quire. The principle, therefore, of the measure just introduced with respect to the Church in Ireland, cannot be disputed; and we conceive that the only point in question with respect to it is, as to the extent to which the contemplated reform should go; and when we recollect that in nine Irish counties the people positively refused to pay tithes, and that when goods were seized in default of payment, they could not be sold, as no purchaser could be found for them, it must be admitted that some strong and effectual remedy was necessary. We are disposed, therefore, to concur in the Bill which has been introduced, which seems likely to ameliorate the distressing state to which that part of the kingdom has been reduced, and to restore confidence in the Government, in the minds of the Irish people.

b2 L. O. p. 161.
c See 3 L. O. 317.

d See antè, 227. 291.

e Atcheson v. Everett, Cowp. 382,
f Rex v. Gardiner, 2 Burr. 1117.

Rex v. Mayor of London, 5 Mod. 493.
h Morris v. Mayor of Lincoln, 12 Mod. 190.
Rex v. Maurice, Carth. 448.

a Considerations on the General Registry Bill, with a Proposed Substitute, by Indorsements on Title-Deeds, and an Appendix in reference to the Evidence reported thereon, by a Select Committee of the House of Commons. By Robert Gream Hall, Esq., M. A., of Queen's College, Oxford, and of Lincoln's Inn, Barrister.

Proposed Substitute for a General Registry.

into a very elaborate consideration of the General Registry Plan, and states all the objections to the principle of the measure which have been adverted to in these pages, and enlarges upon the practical difficulties of any attempt to carry the scheme into effect. To these details we may hereafter take occasion to revert, for they are clearly and forcibly stated; but at present we shall direct our attention to the Substitutional Plan of Mr. Hall. Admitting that some improvement is necessary in the present system, the proposal now made is entitled, we think, to a fair experiment, before the extraordinary and objectionable project of a public registry be enforced.

pays

295

satisfied with the title produced by A, he takes a mortgage of the estate, and his money. 4., afterwards, forms a design of fact of the existing mortgage made to B. On selling the estate to C.; and of suppressing the the proposal to sell, C.,-as common prudence requires,-demands the usual proofs of A.'s title, and, amongst others, the inspection of the title-deed of conveyance to 4. Now A. must either produce this title-deed, or C. will pay nothing. This title deed must be in the hands of either A. or B. (the first mortgagee)it ought to be in the hands of B.; and in honesty, that fact, and the charge, ought to be made known to C.; but dishonesty, and not honesty, is intended. C., however, is expected to be so far on his guard as to require the production of this deed; and it is produced,either by some trick of A., or by actual collusion with B. Now, as the law stands at pre"That all dealings and charges affecting lently to conceal the mortgage. The producsent, A. and B. have it in their power fraudulands, instead of being recorded and deposited tion of the title-deed by A., free from all notice in a public register office, shall be required, by of the charge, misleads the purchaser into the law, to be recorded or registered on the title-belief that all is right; accordingly he pays his deed of the party selling or charging the estate. This record or register to be effected by a me morandum, of a specific and short form, cal culated to give notice to after dealers, of the existence and nature of such prior dealing or charge.

The following is the Plan proposed:

"It will probably be conceded that, when a man intends to lay out his money upon a purchase or mortgage of an estate in land, it is a prudential duty, on his part, to call for the title of the party with whom he deals; and, especially, for the title-deed on which such party founds his own immediate ownership and right of disposal. The man who parts with his money without having taken this prudential step, is guilty of a degree of gross negligence which deserves no favour. This precaution is called for alike by the rules of prudence and of common sense. Thus, then, if the intended vendor or mortgagor produce his title-deeds for inspection, whatever appears thereon will be within the knowledge of the inspector; and he will act with his eyes open, so far as regards all the facts so disclosed. Now, if it were enacted that every dealing affecting the title, by the owner for the time being of the estate or interest dealt with, shall be inscribed or indorsed, by a sufficient memorandum, on the title-deed which conferred such estate or interest upon such owner, i. e. his own immediate title deeds; and that such dealings as are not so indorsed shall be postponed to such as are; the parties first dealing with such owner, will take just the same care to indorse a memorandum of their claim or charge on such titledeeds, as they would do to register such claim or charge in the proposed register office; the penalty being precisely the same in both cases. To put this in its plainest form it would be

thus:

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money, and takes a conveyance from A. Subsequently, the suppressed mortgage is produced, and B., in right of his priority, ousts C. from

the estate.

66

Nothing of this could happen, if B. were compelled, by law, to inscribe on the title-deed a sufficient notice of his mortgage, in peril of losing his priority. In such case, if B. omit the protection of the law, has only to indorse the required notice,-the purchaser C., under his own purchase first, and the intended fraud is prevented. With regard to B., in this transaction, he deserves no favour; for he is either in collusion with A., and a party to the fraud, (and his giving up the deed to 4., to go to market with, and omitting the indorsement, look very like fraud and collusion) or he is guilty of gross negligence in not having, before knew would have protected himself. It is poɛhe gave up the title-deed, done that which he sible that A. may have got the title-deed from B. upon some pretext, and B. may be free from intentional fraud; but he had it in his power, he let the deed out of his hands. All partiesat all events, to indorse his own charge, before whether it be on a sale, mortgage, marriage settlement, or other charge-who act bona fide, will take care, rather than omit to give notice of their charge to after dealers; and those who are disposed to act malá fide, will seek to suppress the charge. But, if they do this, in the case proposed, they must omit indorsing the memorandum, and this omission at once relieves the subsequent dealer from all prejudice.

"This is precisely the relief proposed to be afforded by public registration, and the machinery of a metropolitan office. The prorized to be registered, shall (so far as regards jected bill enacts, that every assurance autho

any

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lands to be affected thereby) be void as against any person claiming for valuable consideration, under any subsequent assurance duly registered, unless the prior assurance shall be registered in the manner directed by

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