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The Property Lawyer, No. XX.-Review : Hughes on Wills.


acknowledgment in writing, in the mean the misdescription was so gross as to release time ($ 40).

the defendant from his contract. No arrears of dower to be recovered for

Parke, J. (after referring to the case of the

Duke of Norfolk v. Worthy, I Camp 340) said, more than six years ($ 41).

that he should direct the jury that, if the misNo arrears of rent or interest to be re-l description was a wilful and designed one, and covered for more than six years ($ 42). had been inserted by any one employed to

Act to extend to the Spiritual Courts. make the plan, or connected with the sale, that ( 43).

would be a fraud adopted by the vendors, and Act is not to extend to Scotland, nor to

consequently would annul the bargain altogeadvowsons in Ireland ($ 45).

ther, although the vendors themselves might

not have been aware of the misdescription. We have now noticed the principal alter

But if the jury thought that the misdescription ons effected by the act; but we shall had originated in error, then, however gross probably, in some future number, enter the negligence of the vendors might be, he was more at large into some of its principal proof opinion that they were bound to find their visions.

verdict for the plaintiff. Supposing even that the mistake were so important as the defend. ant's counsel offered to prove it to be, still

the defendant must abide the event of hav. THE PROPERTY LAWYER.

ing bought an estate without looking at it, No. XX.

and subject to such a condition as that now in question. And he was further of opinion, that

the onus of proving the fraud lay on the defenMISDESCRIPTION ON SALE BY AUCTION.

dant, the presumption of law being against

fraud. On this expression of the learned The condition of sale, that any mistake in the Judge's opinion, the defendant agreed to a redescription of the estate, &c. shall not annul ference. -Wright v. Wilson, I Moo. & Rob.

207. the sale, &c., will only guard against unintentional errors. Thus, when the estate was described in the particulars as being about one

REVIEW. mile from H., and it turned out that the estate was between three and four miles from that Practical Directions for taking Instructions place, Lord Ellenborough put it to the jury for Drawing Wills, with an Appendix of whether the misdescription was wilful and

and! Precedents. By William Hughes, Esq.

of Gray's Inn, Barrister at Law. Clarke, fraudulent, and the jury found that it was.

1833. Duke of Norfolk v. Worthy, 1 Camp. 340. The same doctrine was acted on in the follow

There are several modes of composing law

books, of which we need here only mention ing case:

two. One is, to select a subject uninvesAssumpsit to recover the amount of deposit, tigated by others, and draw from the cases agreed to be paid by the defendant, as the pur- and statutes relating to it, rules which shall chaser of an estate sold by auction.-The de guide, or shall endeavour to guide, the profence was a misdescription of the estate in the

| fession in the matter discussed; or to invent particulars of sale. The particulars of sale referred to a map, as containing the description of

fla new plan for conveying legal information,

The other mode is, an estate, and in that map a turnpike road was 1 practical or otherwise. set out, immediately adjoining the premises : for the author (if author he can be called.) whereas it turned out there was no turnpike- to avail himself of the existing works on his road within a quarter of a mile, and that what subject, and of the labors of their authors, on the face of the map appeared as a turnpike and arrange their information in a new road, was in fact, a mere footpath. There was

form ; acknowledging, or not acknowledgno evidence on either side to show how the misdescription had originated.

ing the obligation, as he may choose. We F. Pollock, for the plaintiff, relied on one of are afraid we must say that Mr. Hughes's the conditions of sale, by which it was provided book has been prepared on the latter plan. “that if any mistake bé made in the descrip | There are many works now before the protion of the premises, or any other material er- fession, containing directions for preparing ror shall appear in the particulars of sale, wills, and forms of wills; and we have been such mistake or error shall not annul the sale, able to find but little new information in but a compensation or equivalent shall be given

the “ Directions, and still less. novelty in or taken as the case may require, such compensation or equivalent to be settled by two

wo the “ Precedents." The old rules are, referees,” &c.

however, stated intelligibly; and we shall · Wightman, for the defendant, insisted that give our readers a favorable opportunity of

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judging of the work for themselves, in the the Statute of Frauds will be insufficient. In following directions as to the execution of some instances, however, where it is impossible wills :

that the terms of the power can be strictly

complied with, a Court of Equity will grant "1. The testator should sign his name in relief: hence, in the case of Bath and Montathe presence of all the witnesses, and he should gue, 3 Cha. Cas. 68, it was resolved, that if a also publish his will before them, or make use man makes a conyeyance, with a power of reof some expressions to enable them to under- | vocation, in the presence of four privy counstand that the instrument he signs is his will; I sellors, and he is sent by the King to Jamaica. but it will of course be unnecessary that the when the circumstance becomes impossible, witnesses should know any thing of the con equity will allow him to revoke it without such tents. If the will is of several sheets, it will

al sheets, it will presence. be advisable that the testator should sign every | “5. In the case of copyholds, it will always be sheet, and also that the witnesses should sub-advisable that they should be surrendered to scribe their names to it, which must effectually the use of the will; for although the statute of prevent any questions from being raised as to 55 G. 3. c. 192, enables a person to devise whether the whole will was in the room at the copyholds without a surrender to the use of time of the execution. Sealing is not neces- the will, yet it must be remembered that this sary; but as it is now become the general prac- statute only supplies the omission of a surtice, it may be advisable to comply with it. render where such surrender would render the

“ 2. Care must be taken that the witnesses will effectual if actually made; but where any subscribe in the presence of the testator; and other formality is required, the statute will not they ought also to attest in the presence of give validity to such devise, unless such foreach other; for in case it should be necessary malities are complied with. The statute in to produce the will in evidence in a court of fact merely supplies a surrender, and nothing common law, the devisee need only produce more. Thus in Hodson v. Merest, 197 Price 556. one witness, provided that such witness can where by the customs of a manor, lands could prove that all the requisites imposed by the not be transferred but by bargain and sale and Statute of Frauds have been complied with; admittance, nor devised, unless by a conveythat is, that the devisor signed his will, or that ance and declaring the uses of the will; on a another person signed it in his presence, and suit by the daughters and heiresses of the deby his express direction; and that the witness visee.' claiming under the heir-at-law of the and two others subscribed in the presence of testator, who had been admitted, it was holden the devisor. The heir is certainly entitled to that the formalities had not been observed by have all the witnesses examined; but the de- the testator in conveying to the uses of the visee is only bound to produce one, if that one will, and that the copyholds did not pass by it. can prove all the requisites; if, therefore, the | And in Doe d. Neihercote v. Bartle. 5 B. & heir wishes the other witnesses to be examined, Ad. 492, it was determined, that this statute he must produce them. But where the wit did not dispense with a surrender required by nesses have attested separately, as one only can a married woman, to enable her to devise prove his own act, they ought all to be called.

copyhold lands, in making which she was to And this will be requisite in all cases where the be examined by the steward, apart from her will is to be proved in the Court of Chancery, husband, as to her consent thereto; this being or in issues directed from that Court; which a surrender in substance intended to protect being a proceeding immediately under the the acts of a married woman, which protection direction, and for informing the conscience of it was not the intention of the legislature to the Court, is governed by equitable principles ; | take away. The object of the statute was and it is a fixed rule of equity, that all the merely to prevent any inconvenience wbich witnesses, if living, must be examined to prove might arise from a mere omission to surrender a will of lands."

in the case of an adult legally capacitated. · [This is not quite correct, as exceptions are

But where a separate examination is an esto be made. See Totham v. Wright, &c.]

sential part of the surrender, the legislature “ 3. The clause of attestation should always

never intended to cure an omission in that be inserted ; and if the witnesses have attested

important particular ; such an extension of in the presence of each other, it should be so the statute would be pregnant with the most stated.

serious consequences. " 4. When the will is made in pursuance of “A surrender, therefore, if possible, should a power of appointment, the terms of the never be omitted. It will be proper also to power must be strictly complied with, as the remark, that there is not eventually any saving in creator of the power may impose what terms point of expense by omitting to surrender, and he thinks proper; hence, although sealing is

trusting to the act; the second section having not requisite in order to give validity to a will, declared that the same fees and stamps shall vet if by the terms of the power the will is be payable on a surrender supplied by the act, directed to be under seal, a mere signature will

| as on a surrender actually made. But as, in be insufficient; (Dormer v. Thurland, 2 P. the case of an omission to surrender, such exWms. 506 ;) and if by the terms of the power, penses must be borne by the devisees, that it is required that the will should be attested circumstance may have considerable weight by four witnesses, or by witnesses of a certain with many testators, who may probably rather denomination, a will executed in pursuance of choose to risk the omission of a surrender, Attorneys practising as Notaries.


than to incur the expenses which such sur-service. In 1801, a statute was passed, by render may occasion.

which a service of seven years to a notary was " 6. At the time of the execution, it may rendered necessary to entitle any one to ad. be proper to inquire whether any of the per- mission as a notary. From the preamble to sons who are intended to be witnesses have this statute it is apparent, that it was not the any thing bequeathed to them by the will. object of the legislature to exclude men of

* 7. The witnesses should be persons of legal skill and good character, but to prevent respectable character, in order to prevent any persons from becoming notaries, whose educasuspicion of fraud; yet at the same time it may tion had not qualified them for the preparation he proper to remark, that although it was at of such legal documents as notaries in general one time considered that the words 'ci edible are called upon to prepare. Hence it is clear, witnesses' meant something more than com- that the act was intended for the protection of petent witnesses, that doctrine has been long the public-not to create a monopoly to their since overruled; so that it is now clearly set- inconvenience. It has, however, failed of its tled, that any person who is a competent intended effect, for men of character and comwitness at a trial at law, will be a sufficient petency have been excluded, whilst bankers' witness to the attestation of a will; hence, clerks, law-stationers, and ship-brokers have such persons as have the use of their reason, obtained admission. and such a religious belief as to feel the obli- At the present time, there are many large gation of an oath, who have not been con- towns and extensive districts in England, in victed of any infamous crime, and are not which few, if any notaries are to be found, and influenced by interest, may be witnesses to a hence great inconvenience has been occasioned will. And it may be proper also to remark, to the public, and particularly to gentlemen that although the will be charged with the possessed of French or American stock, or payment of debts, yet a creditor, although of other foreign property. By giving facility to course he must be interested, may be a witness the admission, as notaries, of respectable counto such will. Stat. 25 G. 2. c. 6. $2.

try solicitors, this inconvenience would be “ In wills, either of real or personal estate, no most effectually obviated. stamps are required to be affixed to them in The profits arising from notarial business order to give them validity; but by several out of London are very trivial; but it is a conacts of parliament, wills of personal estate are venience to a provincial attorney to possess a liable to the probate and legacy duty, which notary's faculty, because it keeps his business will also attach on real estate when it is directed compact; and it is an accommodation to merto be sold and converted into personalty. Onchants, as it saves them the trouble of employthis account it is generally advisable, when | ing different law-men; and on account of this lands are intended to be charged only in aid of mutual convenience, it was usual before the the personal estate, and the whole real estate passing of the statute of 41 Geo. 3. for provinis not intended to be converted into person-cial attorneys to be admitted notaries. From alty, merely to charge such real estate to such a similar principle of convenience to the pubpayments, and not devise it directly in trust to lic, provincial attorneys and solicitors are aube sold, in which case such part only as is thorized as Masters Extraordinary in Chancery actually converted, will be liable to such pay- and Commissioners of the Superior Courts to ment. "And it may also be advisable to remark, take affidavits,- officers greatly resembling that it is not necessary that a stamp should be that of the notary. affixed to an inventory, although some over Acts strictly notarial do not require skill, careful persons have thought proper to put the but accuracy; and if faith and confidence are parties to such an unnecessary expense.”- to be reposed in formalities, it is essential that Pages 96 to 102.

they should be attested by men of unquestionable character and veracity. And whilst a person of legal attainments is now disabled from performing these mere ceremonies, the notary

may prepare instruments of the greatest imATTORNEYS PRACTISING AS

portance, whatever his preparatory study may NOTARIES.

have been.

By the 1 & 2 G. 4, c. 43, any gentleman who

has taken a bachelor's degree at a university We readily afford admission to the following is entitled to admission as an attorney on a serarguments for the Bill now before Parliament vice of three years only, and an attorney's clerk

:is enabled to place himself during the last year It appears that on the suggestion of Mr. Tooke

100ke of his clerkship in the chambers of a practising in the Select Committee, the limitation as to barrister or conveyancer. While these benefiLon lon has been reduced from twenty to ten cial relaxations have been made in the strict

ness of the service required to qualify an indimiles, and the restriction in the country alto

vidual for the far more responsible and difficult gether removed.

duties of an attorney, the full period of seven

years is still exacted to entitle a person to adPrevious to the year 1801, any person was mission as a notary. The result is most imadmitted a notary on production of testimo- portant as affecting the education of those who nials of good character, without any initiatory may be desirous of acting as notaries ; for the 266 Imprisonment for Debt.-New Bills in Parliament.--Reform in Chancery Practice. unreasonable length of the service abridges, NEW BILLS IN PARLIAMENT. on the one hand, the period of early instruction by rendering it necessary to remove the individual prematurely from school,—and, on A BILL TO AMEND AN ACT OF THE SECOND the other hand, deprives him at the expiration YEAR OF HIS PRESENT MAJESTY, FOR THE of his clerkship of the benefits to be derived UNIFORMITY OF PROCESS IN PERSONAL ACfrom the statutory provisions before alluded TIONS IN HIS MAJESTY'S COURTS OF LAW to. Under such discouragements, for the con AT WESTMINSTER. tinuance of which no satisfactory cause can be shewn. the practice of a notary demands sa- RECITING that by an act passed in the second crifices which many who would be in other re-year of his Majesty's reign, intituled, “An spects amply qualified, are unwilling or unable Act for Uniformity of Process in Personal to make. Nor is it possible to suggest any | Actions in His Majesty's

any Actions in His Majesty's Courts of Law at reason why the spirit of the liberal policy ex-Westminster,” it is enacted, that the process hibited in the recent regulations respecting the in certain actions therein mentioned, shall be profession of an attorney should not be extended according to the form contained in a schedule to this branch of business. For it cannot be to the said act annexed, and shall be called a doubted, that the time which the statute of 41 / writ of summons, and that such writ shall be Geo. 3. requires to entitle a person to admis-, issued by the officer of the said Courts ression as a notary would be much better employed pectively, by whom process serviceable in the in the obtaining of a degree at college, or in the county therein mentioned hath been heretochambers of a conveyancer or pleader; and it (fore issued from such Court : is equally certain that the proposed alteration And that since the commencement of the of the law. by enabling men thus educated to said act, the writ of summons, and other writs obtain a notary's faculty, would tend to improve mentioned therein, issued into the county of greatly the character and respectability of the

Middlesex, have been issued, signed and sealed class of provincial notaries.

by the signer of the bills of Middlesex, in the King's Bench, whilst such writs into all other counties and cities have been issued and signed

by a different officer, and have been sealed by IMPRISONMENT FOR DEBT. the sealer of the writs under and by virtue of

an order of the Judges of the said Court:

And that it is expedient that all writs issued To the Editor of the Legal Observer.

into the county of Middlesex, from the Court

of King's Bench, should be signed and sealed The arguments on both sides in this question by the same persons, and in like manner as all resolve themselves into the following consider

other writs issued from the said Court into ations : first, whether the object of imprison

other counties and cities; ment for debt be, to recover the debt ; or, se

It is proposed therefore to be enacted, cond, to punish the debtor. If the latter be the that so much of the said act passed in the object, the system is a total failure for the cre- second ve ditor, and the county is the sufferer. Witness that the writ of summons therein mentioned

or the cre- second year of his Majesty's reign as provides the enormous expenses incurred annually for shall be issued by the officer of the said Courts the support of the debtors in Whitecross Street respectively prison only, including the plaintiff's costs : I the

s street respectively, by whom process serviceable in

Osts: the county therein mentioned hath been herewhy, the amount, sir, is prodigious. If the tofore issy

t the tofore issued from such Court, shall be and former be the object, the system is still a fail

the same is hereby repealed; and that from ure, as must be admitted on all sides. If my and after the

es. 11 my and after the passing of this act, all writs of position be admitted, and you will open your summone, pages to the consideration of the question a, l into the county of Middlesex, from the Court

en your summons, distringas, capias and detainerissued how a system of law can be established to reco-l of King's Bench. shall be signed, sealed and

pror, Will issued, and the fees thereon shall be taken and contribute my mite, and will show that no im

accounted for by the same person or persons, prisonment should take place until a clear case

and in like manner as all other writs of sumof fraud is proved—that men should not, in

mons, distringas, capias or detainer issued from justice, by any conventional law, be punished with imprisonment for their misfortunes, but

the said Court of King's Bench, under and by

virtue of the said recited act; any law, custoin for fraud only. What should be deemed a fraud,

or usage to the contrary notwithstanding. and what not, requires argument; but correct principles may be easily deduced, if the subject is fairly considered.

Yours respectfully,




OFFICE COPIES AND SOLICITORS' CHARGES. a Our pages are always open, within reasonable limits, to the discussion of this and all We have received several communications other legal subjects.—Ev.

on the subject of the 26th clause in the

Reform in Chancery Practice.-Recent Statutes.

267 Lord Chancellor's last Law Reform Bill, were increased to a satisfactory amount, it called “the Chancery Offices Abolishing I might be expected that the solicitors in Bill,” of which the following is the sub-general would still decline accepting it, if stance :

clogged with the forfeitures stated in the The clause in question will be found at Bill. They already labor under several p. 233 of our last Number, and provides that restrictions imposed by acts of parliament solicitors shall deliver copies of all plead- and rules of court, in regard to the delivery ings, &c. at 2d. per folio, and be liable, at of signed bills before commencing an acthe suit of a common informer, to forfeittion, which allows of a previous taxation, 20s. for every folio overcharged, and be and they are subjected to the costs of taxstruck off the roll of all the Courts. ation if more than a sixth be deducted.

There can be no doubt that the delivery These and other regulations are more severe, of copies of the pleadings by the solicitors and the remedy for misconduct obtained in would expedite the proceedings in Chancery a more summary manner, than in any other suits, by saving the time occupied in obtain profession or calling; and it might conseing office copies after the pleadings are quently be anticipated that this further infiled. It would also be a personal conveni. Aiction would be resented as it deserved ;, ence to practitioners. But the terms on for the proposition certainly manifests a which the business is to be done appear foregone conclusion, that nothing short of highly objectionable. ,

the fear of heavy fines and striking off the The existing charge is 10d. per folio: of roll would keep them within the bounds of this, we understand, 6d. belongs to the Si. honesty. We understand accordingly, that necure Six Clerksa (subject to a small allow the solicitors in general have declined to ance to the Sworn Clerk, for taking the risk accept an increase in their emoluments (if of bad debts), and the remaining 4d. is re- increase it be) on such terms; for they contained by the Sworn Clerk, as the officer who sider any such conditions would tend to performs the actual duty. This fee of 4d. degrade them in public estimation, and be per folio appears to be a reasonable and calculated to prevent other respectable per customary one. It is the same which is al- sons from qualifying themselves to practise. lowed for ingrossments in the Common Law | We 'must add also, that we think such a Courts, except that there the folio is 72, in proposition wholly uncalled for, inasmuch stead of 80 words.

| as every necessary protection of the suitor Now, if the proposed alteration should is afforded by the provisions already made take place, the solicitor will be responsible in the statutes and rules of court relating to for any inaccuracy in the copies required to attorneys and solicitors. be delivered, and therefore it will be neces. We have thus inserted the result of many sary that such copies should be carefully remarks which have reached us on this subexamined by two competent persons; whilst ject; and may add, that we understand, in on important matters, or where the strictest consequence of the strong remonstrance verbal accuracy is requisite, it will evidently made by several eminent practitioners, the be prudent to have a double examination ; clause will be abandoned. and there must also be a careful calcula- The Bill, we are informed, cannot protion of the number of folios, in order to ceed to maturity during the present session, frustrate any attempt by malicious persons but will be brought forward without delay to prosecute for the penalties.

in the next. We hope, however, there will It is manifest, therefore, that the proposed yet be time to pass the Chancery Regulation allowance of 2d. per folio is scarcely suffi. Bill (which contains many useful provicient to reimburse the solicitor for his clerk's sions), subject to such modifications as may time in transcribing, examining, and reck- be properly suggested in the Select Comoning the folios; and as including the res- mittee now engaged in its examination. ponsibility for any default, the interest of money advanced, and the risk of ultimate loss, it is so paltry and contemptible that RECENT STATUTES. we do not wonder the “ boon” has been rejected by all the persons with whom we have had an opportunity to communicate.

METROPOLITAN POLICE OFFICES. In the next place, if the proposed fee

3 W. 4. c. 19.

This act passed on the 18th June, 1833, and a According to another informant, the Six lis intituled. « An Act for the more effect Clerk's fee is 4d. only, and that of the Sworn Clerk 6d.

Administration of Justice in the Office of a

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