48 List of Sheriffs' Deputies. —Answers to Queries. — Queries.—Editor's Letter Box. London Deputies of - Mr. Lythgoe, Essex St. by your correspondent J. N., was not mentioned in the argument in Molyneux v. Browne: indeed the act of parliament is express that the defendant shall not be supersedable, and that rule does not, I apprehend, apply: the petitioning the Insolvent Court by the defend Mr. Leathes, 17, Feather-ant for his discharge, not being either "an stone Buildings. agreement of the parties," or "other special {Road, Bedford Row. Mr. Manisty, 3, King's matter within the meaning of that rule;" and therefore no notice was necessary. Mr. Lythgoe, Essex St. QUERIES. S. RENT. TRUSTEES LIABILITY.—INSOLVENT. An insolvent assigns leaseholds to a trustee, {Mr. Chilton, Chancery for the benefit of creditors: he is not able to { Lane. Messrs. Wilson, Bell, and find a purchaser for them, and they are not productive enough to pay the ground-rent. Is the trustee personally liable for the rent, having already paid rent on account? If the trustee should be able to sell, would the purchaser be entitled to distrain, not only for the Messrs. White and Bor-rents accruing from the time of his taking posrett, Frederick's Place, session, but for the arrears due to the trustee, Old Jewry. the latter consenting? Messrs. Jenkins and Ab- more, Bedford Row. Messrs. Meyrick & Cox, Red Lion Square. Worcester, city of{2, New Inn. Messrs. Becke and Co., PRISONER.-FI. FA. E. O. We thank a correspondent at Plymouth for his zeal, and trust he will, on all occasions, continue to refer accurately to the authorities on which he relies. The queries and answers from M. N.; R. C. 8; H. R.; F. W. S.; A. L.; and II. S. C., are unavoidably deferred. The letters of " Prior," " Ambulator," and "A Prisoner," arrived too late for the present number. W. B. I. requests us to inquire whether there is any Law Library where law books are lent, and where. The queries on the "Usages of the Profession," shall be inserted. The letter of W. shall be considered. The rule of H. T. 2 W. 4. § 87, referred to tions, which are in the hands of the printer. The Legal Observer. Vol. VII. SATURDAY, NOVEMBER 23, 1833. No. CLXXIV. "Quod magis ad Nos Pertinet, et nescire malum est, agitamus." HORAT. DISSERTATIONS ON THE RULE AGAINST PERPETUITIES. the body of Robert Wharton, and their heirs, as they should attain the respective ages of twenty-one; there might be an interval, therefore, of twenty-one years between the death of Robert, till which no one could be heir of his body, and the peTHE general rule for preventing a perpe- riod when such heir should attain twentytuity as to real estate, has long been well one, till which time the estate was not to settled; but a doubt has frequently been vest; and that limitation was held good entertained as to one portion of it, which a by executory devise. That, however, was recent case has now set at rest. The a case of infancy, and it was on account of recognised rule on the subject, ever since that infancy that the vesting was postponed. the year 1719, is, that no person can This case was followed by, and was the limit or defer the enjoyment of land for a express foundation of the decision in, Stelonger period than a life or lives in being,phens v. Stephens, and is mentioned in the and twenty-one years beyond the death of the surviving tenant for life: but whether this term must depend on an infancy, or might be a term in gross, has been the disputed point. The cases of Lloyd v. Carew and Marks v. Marks, do not necessarily warrant an inference, that a term of twenty-one years, for which no special or reasonable purpose is assigned, would be allowed. They are only important, as establishing that a life or lives in being is not the limitation; that there are cases in which it may be exceeded, Taylor v. Biddal, 1677, is the first instance, in which so great an excess as twenty-one years after a life or lives in being was allowed, and that was a case of infancy. It was a limitation to the heirs of a Cadell v. Palmer, 10 Bing. 140. In our notices of some of the cases, we shall prefer using the statement of them by Mr. Justice Bayley, and his remarks on them. Lloyd v. Carew, Show. P. C. 137; Marks v. Marks, 10 Mod. 419. c 2 Mod. 299. NO. CLXXIV, certificate as such. That was a case of infancy also. The executory devise there was, "to such other son of the body of my daughter Mary Stephens by my son-in-law Thomas Stephens as shall happen to attain his age of twenty-one years, his heirs and assigns for ever:" and the Judges of the Court of King's Bench certified that the devise was good. This also was a case of infancy: it was on account of that infancy that the vesting of the estate was postponed; and though, under that limitation, the vesting of the estate might be delayed for twenty-one years after the deaths of Thomas and Mary Stephens, it did not follow of necessity that it would, and it might vest at a much earlier period. These decisions, therefore, do not distinctly or necessarily establish the position, that a term in gross for twenty-one years, without any reference to infancy, after a life or lives in esse, will be good by way of executory d Cas. Temp. Talb. 232. D 50 Dissertations on Conveyancing, No. XII. devise; but there is nothing in them neces- of the instances they had minority before sarily to confine it to cases of infancy. In says, 66 In Goodman v. Goodright is this passage: Lord Chief Justice Mansfield It is a future devise, to take place after an indefinite failure of issue of the body of a former devisce, which far exceeds the allowed compass of a life or lives in being, and twenty-one years after,' which is the line now drawn, and very sensibly and rightly drawn.'" h their eyes, had it not been their clear understanding that the rule of twenty-one years was general, without the qualification of minority." Mr. Justice Blackstone, in his Commentaries, puts as the limit of executory devises, that the contingencies ought to be such as may happen within a reasonable time, as within one or more lives in being, or within a moderate term of years; for courts of justice will not indulge even wills, so as to create a perpetuity. The utmost length that has been hitherto allowed for the contingency of an executory devise of either kind to happen in is, that of life or lives in being, and twenty-one years afterwards; as when lands are demised to such unborn son of a feme covert as shall first attain twenty-one, and his heirs, the utmost length of time that can happen before the estate can vest is, the life of the mother, and the subsequent infancy of her son; and this has been decreed to be a good executory devise. Mr. Fearne lays down the rule in the same way: An executory devise, to vest within a short time after the period of a life in being, is good;" as in Lloyd v. Carew, which he states, and Marks v. Marks: and he says, k The Courts, indeed, have gone so far as to admit of executory devises limited to vest within twenty-one years after the period of a life in being," as in Stephens v. Stephens, Taylor v. Biddal, Sabbarton v. In Wilkinson v. South, Lord Kenyon Sabbarton, all of which he states, and in says, "The rule respecting executory de- all of which the vesting was postponed on vises is extremely well settled, and a limita- account of minority only; and then he tion by way of executory devise is good if draws this conclusion: "That the law apit may take place after a life or lives in pears to be now settled, that an executory being, and within twenty-one years, and devise, either of a real or personal estate, the fraction of another year afterwards." which must, in the nature of the limitation, "The manner in which the rule was ex-vest within twenty-one years after the pepressed in the instances to which I have riod of a life in being, is good; and this referred, as well as in text writers," says appears to be the longest period yet allowed Mr. J. Bayley, in Cadell v. Palmer, ap- for the vesting of such estates." The inpears to us to justify the conclusion, that it stances put-all instances of minoritywas at length extended to the enlarged might certainly have suggested that it was limit of a life or lives in being, and twenty-in cases of minority only that the twentyone years afterwards. It is difficult to suppose that men of such discriminating minds, and so much in the habit of discrimination, should have laid down the rule as they did, without expressing minority as a qualification of the limit, particularly when in many e Willes, 213; S. C. 7 T. R 103, n. f 2 Burr. 879; and see Buckworth v. Thirkell, 2 B. & P. 654. 8 7 T. R. 558. h Mr. J. Bayley thinks that the word should be "must." one years were allowed; but by stating it generally, as he did, he must have considered twenty-one years generally, independently of minority, as the rule. The same observation applies to Mr. Justice Blackstone. In the case of Beard v. Westcott,1 the i 2 Bl. Com. 174. j Cont. Rem. 399, 401, 9th edit. k Cas. T. Talb. 55, 245. 15 Taunt. 393. Dissertations on Conveyancing, No. XII. 51 be framed by analogy to the case of a strict settlement, where the twenty-one years was allowed in respect of the infancy of the tenant in tail, yet he considered it fully settled that limitations by way of devise or springing use might be made to depend upon an absolute term of twenty-one years after lives in being." Against this decree there was an appeal to the House of Lords, upon which the following questions were submitted for the opinion of the Judges: First. Whether a limitation by way of executory devise is void, as too remote, or otherwise, if it is not to take effect until after the determination of one or more life or lives in being, and upon the expiration of a term of twenty-one years afterwards, as a term in gross, and without reference to the infancy of any person who is to take under such limitation, or of any other person. Secondly.-Whether a limitation by way of executory devise is void, as too remote, or otherwise, if it is not to take effect until after the determination of a life or lives in being, and upon the expiration of a term of twenty-one years afterwards, together with the number of months equal to the ORDINARY precise question arose, whether an executory devise was good, though it was not to take effect till the end of an absolute term of twenty-one years after a life in being at the death of the testator, without reference to the infancy of the person intended to take, and was distinctly and pointedly put by Sir William Grant, the then Master of the Rolls; and the Court of Common Pleas certified that it was. The point, though necessarily involved in that will, was not prominently brought forward, either upon the will itself, or upon the first of the two cases that was stated; and lest it might have escaped the notice and consideration of the Court of Common Pleas, it was made the subject of an additional statement to that Court. The first certificate was in November, 1812; the next in November, 1813; and the Judges who signed them were Sir James Mansfield, Mr. Justice Heath, Mr. Justice Lawrence, Mr. Justice Chambre, and Mr. Justice Gibbs, men of great experience, and some of them very familiar with the law of executory devises. Those certificates stood unimpeached until 1822, when the same case was sent by Lord Eldon to the Court of King's Bench; and that Court certified that the same li-period of gestation, but the whole of such mitations which the Common Pleas had held valid, were void, as being too remote;m but the foundation of their certificate was, that a previous limitation, clearly too remote, and which was so considered by the Court of Common Pleas, made those limitations also void which the Common Pleas had held good. The subsequent limitations were considered as being void, not from any infirmity existing in themselves, but from the infirmity existing in the preceding limitation; and because that was a limitation too remote, the others were considered as being too remote also. This was the state of the authorities as stated by Mr. J. Bayley, when the question again arose. The vesting of devises was suspended, by a will, for terms of one hundred and twenty years, determinable on lives, and twenty-one years absolutely, and the point was raised upon a bill filed by an heir at law against trustees under a will. The Vice Chancellor" (Sir John Leach) held the limitations in the will to be valid; observing, "that although the rule of law years and months to be taken as a term in gross, and without reference to the infancy of any person whatsoever, born or en ventre sa mere. Thirdly. Whether a limitation by way of executory devise is void, as too remote, or otherwise, if it is not to take effect until after the determination of a life or lives in being, and upon the expiration of a term of twenty-one years afterwards, together with the number of months equal to the LONGEST period of gestation, but the whole of such years and months to be taken as a term in gross, and without reference to the infancy of any person whatever, born or en ventre sa mere. The unanimous opinion of the Judges delivered was, on the 25th of June, 1833, as follows, by Bayley, B.:--As to the first question, the Judges decided that the limitation was valid. Upon the direct authority, said Mr. Justice Bayley, of the decision of the Court of Common Pleas, in Beard v. Westcott, and the dicta by Lord Chief Justice Willes, Lord Mansfield, and Lord Kenyon, and the rules laid down in Blackstone and Fearne, we consider ourselves warranted in saying that the limit is a life or lives in being, and twenty-one years afterwards, without reference to the infancy of any person whatever. This will 52 Changes in the Law made during the last Session of Parliament. certainly render the estate unalienable for twenty-one years after lives in being, but it CHANGES MADE IN THE LAW IN will preserve in safety any limitations which may have been made upon the authority of the dicta or text writers I have mentioned; and it will not tie up the alienation an unreasonable length of time. Upon the second and third questions proposed by your Lordships, whether a limitation by way of executory devise is void, as too remote, or otherwise, if it is not to take effect until after the determination of a life or lives in being, and upon the expiration of a term of The Lord Chancellor coinciding in the opinion of the Judges, the judgment of the Court below was affirmed. Judgment affirmed. It has also been decided that two periods of gestation are allowed, one for the commencement of the period, and the other at its determination.P Lands may be limited during the lives of any number of persons, if they are all alive at the death of the testator. THE LAST SESSION OF PARLIA- No. XV. THE BANK OF ENGLAND ACT. 3 & 4 W. 4, c. 98.a Legal tender. Alteration of Usury Law. THE whole of this act (which passed on the 29th August last) is of general importance to the public, and several of its clauses are necessary to be particularly known to the profession. We refer especially to the sixth bank notes a legal tender for all sums above clause, which, after 1st August next, makes five pounds, except at the Bank of England and the Branch Banks; and the seventh clause, which takes all bills, not having more than three months to run, out of the operation of the usury laws. The third section, also, is of considerable importance, as anthorizing Joint Stock Banking Companies in London, or within sixty-five miles, provided they do not borrow or take up money on bills or notes payable on demand, or at any time less than six months, during the continuance of the privileges of the Bank of England. We shall give these more material clauses nearly in full, and state the substance of the rest. The act recites the 39 & 40 G. 3. c. 28, giving the Bank, as a corporation, certain Lands may be limited in tail for a longer powers, emoluments, and advantages, subperiod than the usual rule, because, as the ject to redemption; and the 7 G. 4. c. 46, limitations may at any time be barred by a regulating the copartnerships of bankrecovery, the mischiefs intended to be guarded against do not arise. So, also, there can be no perpetuity of leaseholds for years determinable on lives." J. ers, &c. It recites also that the Bank were willing privilege of exclusive banking for the period, to allow the public an annual sum for the and as specified in the act. It is enacted, therefore, that the Bank of England shall have such exclusive privilege of banking as is given by the act for the period, on the terms, and subject to termination as aftermentioned. (§ 1.) o See also Heath v. Heath, 1 B. C. C. 147 ; During the continuance of the privilege, Gore v. Gore, 2 P. Wms. 28; Thelusson v.no banking company of more than six perWoodford, 4 Ves. 227; Keeley v. Fowler, Wilsons shall issue notes payable on demand mot, 306. within London or sixty-five miles thereof. (§ 2.) P Long v. Benchall, 7 T. R. 100; Thelus son v. Woodford, 4 Ves. 227; Lane v. Holford, Ambl. 479. Bengough v. Edridge, ubi sup., and see 11 Ves. 12. Nichol v. Sheffield, 2 B. C. C. 215. The intention of the act is that the Bank of England should (subject to redemption) a The title of the aet is "An Act for giving to the Corporation of the Governor and Company of the Bank of England certain privileges for a limited period, under certain conditions." |