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118

Proposed Amendments in the Reform Act.

The General Register Bill.

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that in the case of threc persons or partners | isting parishes or districts are referred to, or being jointly rated for 251., two might be en- artificial ones, in the discretion of the returntered on the register.

ing officers. Two opposite opinions of first 30. Doubtful whether occupiers may demand rate eminence have been given on this point. to be rated for all the rates made during the 71. No provision whatever made for several year, or upon each rate as made.

necessary expenses exclusive of the booths and 33. (Clause as to residence), so worded as clerks, and which it is hard should fall pernecessarily to exclude from the register many sonally on the returning officer, or place him valuable classes of qualified individuals, such in controversy with the candidates and their as the seamen and fishermen of Hull, Dover, agents. &c. Also so loosely worded, that residents in 76. The barrister, returning-officer, and boroughs have been admitted to vote in overseers, should have the usual protection counties for land in the borough adjoining of one month's notice of action, with liberty to their gardens.

to tender in amend. 39, 47, and 48, require objections in writing, And, lastly, the important doubt whether a thus rendering it questionable whether a printed committee of the House of Commons may ennotice will suffice, as the act in many places tertain and determine questions in appeal from contradistinguishes printing from writing. It the judgment of the barrister. was held in Berkshire that the words * personally deliver,” in this clause, meant that the notice should be delivered by the proper hands of the objector to the proper hands of the

THE GENERAL REGISTER BILL. tenant.

40. The barrister should have immediate copies of the entire lists in boroughs as well as counties ; at present he has none as to the PETITIONS OF THE PRESENT Session. former, and an abstract only as to the latter ; an entire list would enable him to be better The following is the substance of numerous prepared for the revision, and more accurately 1 petitions which have been presented against to fix the periods for holding his courts. 50, 51, and 52. The barrister should have of

re of this Bill in its present shape ; and may assist

18 Di his own authority power to expunge from the those who are preparing to make further opregister in certain cases, a flagrant instance of position. the want of which occurred as to the proprie. tors of shares in the Kennett and Avon canal, That a General Public Register of Deeds, who each claimed to vote in fourteen different whether to be effected by deposit of the oriparishes, and were successfully objected to in ginal, or of a duplicate, copy, or memorial, is thirteen; but owing to an informality in the not only uncalled for by any adequate occasion service of the notice of the objection on the of necessity or usefulness, either to the land. overseer in the fourteenth, they were retained owner or the public at large ; but on the conon the list, and voted. Revising barristers' trary would be productive of consequences duties imposed, with no corresponding powers highly mischievous to both: for whilst, on the for obtaining proper materials previous to one hand, all transactions relative to the conholding their courts, or for enforcing attend- veyance of lands, whether by sale, mortgage, ance or respect at them. No fund or period marriage settlement, or otherwise, would inassigned for payment of their fees and ex- variably be attended with delay, exposure, and penses.

additional expense, with risk of the loss of 55 and 56. Much ambiguity and circuity in deeds by their transmission to and from the the payments and repayments and allowances place of registry, and with great danger to as between the county treasurer, clerk of the titles, from the omissions which would often peace, and overseers, of the monies received occur under the new system; on the other for registration and printed copies of the lists. hand, the evils to be guarded against have been The compulsory shilling once for all in coun- greatly overrated, both as to frequency and ties, and annual in boroughs, should be abso-magnitude, by some of the advocates of the lutely abolished in both.

measure; for it appears from the evidence of 58. Third question, as to same qualification men of experience, given before a Select Com. differently construed according to the views of mittee of the late House of Commons, that it by the elector, and many consequently dis- such evils are of extremely rare occurrence. franchised, should be altogether repealed, or a That it has been made to appear that the provision introduced, as in the Irish Act, that proposed law would operate most injuriously no person shall be precluded from voting on towards persons wanting to raise money on account of having sold, &c., if he shall have sudden emergencies, when the necessary and retained a sufficient amount of qualification, as unavoidable delay under the new system would the case may be.

often frustrate the object of the party, and 59. No mode is provided for ascertaining expose him to serious consequences. the persons excluded from the register, so as That the evils of the Register, with regard to confine the privilege of tender to them. to small transactions, would be most grievous,

68. In this clause, for the erection of booths and would in numerous cases amount to a for districts, it does not appear whether ex- prohibition. It has been ascertained that more

- The General Register Bill.-Dissertations on Conveyancing. 119 than half of all the sales and mortgages that | DISSERTATIONS ON CONVEYANCING. take place are for sums at and under 3001. • That ordinary skill and care, even under the

No. X. present system, are sufficient to afford, in transactions respecting real property, a sa-I ON THE CONSTRUCTION OF PROVISOES FOR tional assurance of safety; and that the incon

RE-ENTRY IN LEASES. veniences which are at present experienced may be altogether, or in a great measure ob- Or the various clauses usually contained in viated, without the aid of so cumbrous and leases, none have given rise to more discusexpensive a remedy as a metropolitan, or even sion than those which would confer on the a local registry. That the concealment of set-lessor a right to determine the lease, in consetlement deeds, which has been held forth as quence of something on his tenant's part, wheone of the principal evils arising from the pre-ther of omission, or commission, prior to the sent system, may be prevented by an enact- | period at which it would otherwise expire by lapse ment that a memorandum of settlement deeds of time. This perhaps cannot but be looked shall be indorsed on one or more material title upon as a natural consequence, when we condeeds; that a second mortgage should be pro- sider, that as on the one hand a lessor is often tected from being defeated by a subsequent anxious to avail himself of such a privilege, incumbrance, by an enactment, that a first so, on the other hand, the Courts are equally mortgagee shall permit a meinorandum of a strict to regard the very letter of his power, second mortgage to be indorsed on his mort- and to uphold, as far as is consistent, the ingage deeds, and on any one or more material terest of the tenant. So uniformly indeed has title deeds ; in short, that a general plan by this principle been acted upon, that it is not indorsement might be devised which, although now too much to affirm, or rather it has long intrinsically a scheme of registration, would | been established, that unless a clause of this neither be public, nor official, nor metropo- nature is so accurately worded as precisely to litan, nor provincial; neither dependent on meet the act or default in question, the lessor Government regulations, nor on official agents : will in vain seek to take advantage of it. Notwould call for no tax, nor take any man's title withstanding, however, the many cases on this deeds out of his own custody; which, in fine, subject, which have been argued before the would adopt and include the substance of Courts, and have since been considered as fully official registration, without its machinery, its settled, independently of the attention besforms, its impediments to free commerce intowed upon it by several excellent treatises, land, or its unavoidable and unnecessary certain points, not before noticed, and propublicity.

bably never contemplated, have recently called That the well grounded confidence which for judicial determination. It may not therearises, especially in the country, from local fore be useless to give a concise but connected. information, and from the known integrity of view of the more important cases lately deterparties and their solicitors, renders unneces-mined on the subject. sary, in many cases, the troublesome and ex- l That in the construction of provisoes for pensive precautions which the wary convey- / re-entry, a general description is, for the most ancer at a distance, feelingly alive to the pos- / part, to be preferred to a particulur one, is sibility of fraud, and ignorant of all extrinsic well shewn by the case of Doe d. Spencer v. circumstances affecting the property and its Godwin, 4 M. & S. 265. Here the lessee cotitle, deems it his duty to advise.

venanted that he would pay the rent, and That the feeling of the country has been un- would not assign without the leave of the lesequivocally shewn by the hundreds of petitions sor, provided that if the rent were in arrear, against the measure in question which were or if all or any of the covenants “thereinafter" sent up to the last and preceding Parliaments. contained on his part should be broken, it It would argue but little knowledge of human should be lawful for the lessor to re-enter; and nature, seriously to contend that because such there were no covenants on the part of the petitions are not now extensively renewed, that former, after the proviso, but a covenant on the therefore the public assent to the measure. part of the latter for quiet enjoyment by the Its promoters well know that the tendency of lessee on his paying the rent and perforining continually agitating a question is to bear down the covenants “ thereinbefore” contained. It all opposition to it. That the public never had was nevertheless held, that the lessor could nor yet have any sympathy with the ineasure. I not re-enter for breach of the covenant not appears by the fact, that no petitions in its fa- to assign, for the proviso was restrained by the vor have ever been presented, either to this or word “thereinafter" to subsequent covenants; the two preceding Parliaments.

and though there were none such, yet the Court could not reject it. And though it might be contended, that the covenants respecting the enjoyment and the determination of the estate should be construed together, and the words “thereinafter” and “thereinbe. fore,” as necessarily relating to the same things, and therefore used in the same sense, yet that would be making a substantial variation from the express terms of the deed. It is

120

Dissertations on Conveyancing.

Selections from Correspondence.

almost needless to add, that if the proviso had was an ejectment brought for a forfeiture sup. said, that in case the rent should be in arrear, I posed to have been incurred by the nonper. “ or if all or any of the covenants herein con- formance of a covenant to repair. The clause tained,” &c. should be broken, the lessor reserved the right of re-entry, “ if the lessee might re-enter, no such objection could have should do, or cause to be done, any act, matter, prevailed. But, though the words are most or thing whatsoever, contrary to or in breach generaliy approved, a question may still arise of any one or more of the covenants and agree as to their legal interpretation: thus, where ments." Lord Tenterden in delivering judgthe proviso was, that “if the lessee, his ex- ment said, “ Here the words, do, or cause to ecutors, administrators, or assigns, should com- be done, import an act, and there is nothing mit or permit any manner of waste in or upon in the other parts of the instrument from which the said demised premises to the value of 108., we can collect that the intention of the parties and the same did not amend, or other satis- was, that it should apply to an omission to do faction for the same give within three months an act. We are therefore of opinion, that the after notice, the lessor might re-enter.” The mere omission to repair, cannot be considered lessee pulled down some old buildings, and as doing, or causing to be done, any act within erected others of a different description. The the meaning of the clause for re-entry.” lessor brought ejectment, and obtained a ver- The last case I would notice is Doe d. An. dict, but no question was put to the jury as to trobus v. Jepson, 3 B. & Ad. 402. Here the the amount of waste committed. On motion lease contained a covenant by the lessee to use for a new trial on that ground, the other and consume upon the premises, all the hay, Judges agreed with Bayley, J., that it should dung, &c., under a penalty of 51., for every ton be made absolute, as the waste contemplated carried off, and also a clause for re-entry, which by the proviso, was waste producing an injury enumerated every covenant except the above, to the reversion, and it was possible that the and then provided, that for the breach of any value of the reversion might be increased by of the covenants, the lessor might re-enter. the alteration. Doe d. Darlington (Earl) v. | The defendant sold hay off the premises, and Bond, 5 B. & C. 855.

the forfeiture being insisted on by the plaintiff, It may prima facie appear strange, that any it was objected on the part of the tenant, that doubt could have been entertained as to the the lease gave no power to the lessor to remeaning of the word “waste," or how it could enter, the proviso not extending to the covebe contended, that any thing should ever be nant to consume the hay on the premises, considered as such, which was not in some another remedy being expressly provided, sort prejudicial to the inheritance; but though namely, the penalty of 51.' Lord Tenterden it is to be hoped that the opinion expressed by however, said, “ The fair meaning of the cothe learned Judge will in future be acted upon, venant not to remove any hay under a penalty instances have occurred in which the Courts of 51. per ton, and of the subsequent proviso, have held, that the fact of the tenant's having is, that if the hay be so removed without payaltered the nature of the thing demised, without ment of that sum, the right of re-entry shall reference to its being an improvement or not, accrue. The proviso extends to all covenants, was in itself sufficient to constitute waste. See and one covenant was broken by the defenWoodfall (new edit.) 463. In Doe d. Palk v. dant's removing the hay without paying the Marchetti, 1 B. & Ad. 715, the action was penalty.”

M. brought on a proviso giving a power of reentry if the tenant should, “by the space of thirty days next after notice thereof given, make default in performance of any or either

SELECTIONS FROM CORRESPONof the clauses or agreements.” The defendant

DENCE. erected a portico, and notice had been given

No. XXVIII. him to replace the premises in their former state. It was held that no forfeiture was incurred, the clause not being applicable to a

PAYMENT OF DEBTS OUT OF REAL ESTATE, covenant by the tenant “not to allow alter- My Lord Wynford, who seems to delight in ations in the premises, or permit new buildings “ amending ” Bills, wishes to introduce a to be made upon them without permission." clause into the Payment of Debts Bill, which The chief grounds for this decision appeared will render it a nullity. What tradesman, to be, Ist, That the default in question was of though he may have trusted a nobleman or such a nature that the parties could not have gentleman to the amount of thousands, has contemplated a notice not to make it ; 2d, The any written acknowledgment of the debt; or language of the proviso seemed properly ap- what attorney has any thing of the kind ? I plicable to affirmative covenants, and there- am myself an agent, and have a client or two fore confined to such as were to be performed | who are men possessed of real estates; but by the lessee, and which not being performed, have no acknowledgment of any debt except a he incurred a forfeiture.

few occasional notices in letters, which my Upon the same principle it is a general rule, Lord Wynford would hardly call acknowledgthat covenants strictly negative, will not be ments. I hope the Lord Chancellor is by this extended to those which are affirmative, as is time on his guard against the amendments of established by the recent case of Doe d. Sir his noble and learned friend. W. Abdy v. Stevens, 3 B. & Ad. 299. This

P. R. A.

Selections from Correspondence, No. XXVIII.

121

HOURS OF ATTENDANCE IN SOLICITORS'

LEASES. STAMP DUTY.
OFFICES.

To the Editor of the Legal Observer. The Legal Observer being the medium Sir. through which the attention of the members In answer to the query put by “ Aspiro," in of the profession is likely to be drawn, with No. CXL, on this subject (p. 22)—whether the regard to the customs observed in the offices ad valorem duty ought to depend on the penalty of solicitors, I beg to notice one which pre-l prescribed whatever it may be, in connection vails in the most respectable part of the pro- with the rent actually reserved, or ought it to fession, namely, that of keeping the clerks be reculate

be regulated by the yearly rent alone? I subuntil nine o'clock at night during the terms, mit that it can only be guided by the latter; and for a fortnight afterwards. I believe it for if we were to have it otherwise laid down, originated in consequence of the Rolls Court we should infer that the legislature anticipated sitting in the evening from six till ten, which ever

every tenant would break his covenants; and has been long discontinued. I am sure every as the

ure every | as the penalty not unfrequently varies accordliberal man will allow that from ten (nine] in

ing as so much of the covenant is broken, it the morning until eight in the evening, are

would be difficult then to ascertain the exact keurs enough to transact business; and I ain

ad valorem, and different sums are imposed for quite sure after that time no profit results, but

different covenants. Would “Aspiro's” inon the contrary, loss. It may not be out of

genious draftsman take the amount of all these place to observe, that the hours in merchants'

together and lay the duty on the whole? There counting houses are from ten till four, bank-is a very old maxim of our law, that it can never ing houses ten till five or six.

I presume a man intends to do wrong; and I My object is only the health and comfort of would ask, what recompense would the tenant the poor slaves of the profession, the preser-have, on the expiration of his term, who has vation of which must add to the luxury of faithfully performed all his covenants for this their employers, if they will construe this ap additional expense? How encouraging to tenpeal liberally,

ants to take leases! that they are to pay a duty Yours, &c.,

on a penalty never in their ideas to incur, and A RETIRED PRACTITIONER. whether incurred or no, it must be paid. If an Temple.

overbearing landlord should insist on imposing as many penalties as he has covenants, where would this evil cease? I cannot find any cases

that will bear the ingenious draftsman's sugLIMITATION OF REAL ACTIONS.

gestion, and I cannot suppose that it will ever To the Editor of the Legal Observer. be ruled to that effect. Sir,

I have trespassed more on your time than it For many years I have been doomed to was my intention to have done, but I know much mortification and distress, in conse- you to possess a desire that every question in

the Legal Observer should be met freely. quence of not possessing pecuniary means to

Inner Temple.

C. C. prove my just and legal claims upon family property left forty years ago. Having now obtained the assistance and advice of a friend, I have latterly made some progress towards

DELAYS IN THE EXCHEQUER. the recovery of that property which has so long been withheld from me. But, Sir, no

To the Editor of the Legal Observer. sooner did a ray of hope dawn upon my gloomy Sir, prospects, than I was informed by a profes When there were only four Judges in the sional gentleman, that a bill is now passing Exchequer, that Court was remarkable for the through Parliament which will prevent the dispatch with which all applications to the recovery of that property; the bill limiting all | Equity side of the Court, in any stage of a recovery to twenty years froin the period that cause, were heard and decided; but now that the property was left. Now, Sir, will you be an additional Judge has been appointed, alas, kind enough to inform me whether there is what a change for the worse has taken place! such a bili in progress, and the particular. There was, I believe, only one day appointstage to which it has arrived ? T. W. ed for motions, further directions, and excep,

| tions to reports, during the present term, the The case stated by our correspondent, is whole of which was taken up by two mộtions, one which, at present, will not come within

leaving no opportunity for a third motion, or the act: the operation of which is proposed to for a single hearing on further directions, or commence on the 1st of January, 1835. Ac exceptions to reports, within the term. A tions brought in the mean time will be tried

nearly similar result, though from another under the present law. The danger will be,

cause, took place last term, without the usual that if the plaintiff should be defeated in his

sittings between, and thus the poor suitors first proceedings and the time expire, he will who have been anxiously waiting twelve come within the restrictions of the act. Ed.] months for the decision of their causes in a

particular stage, have every chance of being compelled to wait twelve months more.

122

The Law relating to General Post Letters.

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This is the more vexing, as the remedy for who cannot obtain intelligence without comthe eyil is so very plain and easy. Now that mitting a misdemeanor. there are four other Judges of the Court, who we need not dwell on the means which are fully competent to transact the Common Law business, why cannot the Chief Baron sit

2: allowedly exist, of transmitting private letin Equity every day, instead of only three

ters under the franks of Officers of State times a week, or perhaps ten days altogether and Members of Parliament; a practice during the term? Such an arrangement would formerly abused, but which, when limited enable him to get through the Equity business to what may be called domestic corresponwith case to himself, and advantage to the dence, affords a great relief to the anxieties suitors. I say nothing of the delay in pro-l of friends and families. It is obvious, indeed. nouncing decisions after causes have been heard.

that the Post Office cannot be defrauded by Mus.

sending a single letter of business, or even several letters, in a parcel, because the carriage of parcels is greater than that of

the postage, and the alleged infringements THE LAW RELATING TO GENERAL

on the rights of the Post Office, if altogether POST LETTERS.

abstained from, would probably produce but little increase of revenue: those who wait

for the tardy convenience of forwarding a We stated last week the 7th section of the letter in " the next parcel,” would never 5 G. 4. c. 20, prohibiting the sending or send it if the postage were to be paid. receiving letters otherwise than by post; We question whether the Post Master and the 8th section, which contains the ex. General would gain a thousand a year by ceptions to the enactment. We have since permitting his underlings to stop all the referred to the previous Post Office Acts, friendly“ salutations and greetings” which namely, the 9 Anne, c. 10, and the 42 G. pass between the town and country gossips. 3. c. 81, and find that they confer no Those who have matters of any importance power (it would be extraordinary if they never hesitate to incur the expense of did,) to break open parcels, for the purpose postage; but there are thousands of inof ascertaining whether they contain any stances in which, small as the cost is, it thing prohibited. It may be defensible to would not be incurred, although there were search goods and merchandise, particularly no other mode of communication. The when imported from abroad; but to break Government would do well to consider open parcels sent from one part of the whether it is worth while, for the sake of kingdom to another, and to permit either an insignificant sum, to incur the odium superior or subordinate officers to delay the of exercising a very doubtful and inquisidelivery of parcels containing title deeds, torial power. As regards the members of or documents, or proceedings in Courts of the Profession, we believe it would save Justice, is too monstrous to be endured. much trouble if the rule were strictly enThe most serious consequences must inevi-forced, though it might deprive them of the tably ensue, if His Grace the Post Master gratification of occasionally accommodating General should permit his officers and the families and friends of their corresponagents to exercise their discretion in such dents. matters. The people of this country must In addition to these remarks, we would be taxed in some other way than by the briefly direct attention to the words of the inspection of their confidential letters and act of Parliament. It will be observed, by packets of business.

the 8th section 5 G. 4. c. 20 (vide p. 111), The convenience and advantage of a Post that there is an exception in favor of letters Office establishment, and the skill and ac- which concern goods sent by a carrier, such curacy with which it is conducted, will be letters being delivered with the goods; and readily admitted; and we presume that the proviso extends to merchants' letters adequate remuneration is afforded for the delivered by the masters of ships or persons services which each individual performs; it employed by them. The clause then proappears also that the revenue is very con- ceeds to exempt “any commission or residerably increased, after the payment of turn thereof, affidavits, processes, or proevery expense : if, however, the cost and ceedings, or return thereof, issuing out of trouble of the establishment be not suffi- any Court." Now, though the words of the ciently paid for, let the amount of postage proviso do not strictly warrant the conbe increased ; but let there be no encou- struction, the intention surely must have ragement to a wretched class of informers, been to except letters “ which concern”

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