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Changes in the Law during the last Session of Parliament. such land, or out of any of his land ($ 7); |
No. X. and it is expressly declared, that the right |
PAROCHIAL RATES EXEMPTION. of a widow to dower shall be subject to any conditions, restrictions, or directions which
3 & 4 W.4, c. 30. shall be declared by the will of her hus- This act passed on the 24th July, 1833, band, duly executed as aforesaid ($ 8). and is intituled “. An Act to exempt from
The necessary forms under this act will | Poor and Church Rates all Churches, Chabe found in the Second Part of the “ Com- pels, and other Places of Religious Wormentaries.”
ship.” By the existing law, where lands are de- Section 1. enacts, that from the 1st vised to a widow, if there be no declaration October, 1833, no person shall be rated to that the devise shall exclude her from dower any church or poor rates, in respect of any out of the husband's other lands, the bare churches, district churches, chapels, meeting devise will not have this effect. Incledon houses, or premises, or such part as shall v. Northcote, 3 Atk. 430; Lord Dorchester be exclusively appropriated to public reli. v. Earl of Efingham, G. Coop. 319. This gious worship, and which (other than rule, however, is altered by the present act, churches, district churches, and episcopal it being enacted, that where a husband shall chapels of the established church) shall be devise any land out of which his widow duly certified for the performance of such would be entitled to dower if the same were religious worship according to the provision not so devised, or any estate or interest of any acts in force. therein, to or for the benefit of his widow, But no person shall be exempted from such widow shall not be entitled to dower such rates in respect of any parts of such out of or in any land of her said husband, churches, district churches, chapels, meetunless a contrary intention shall be declared ing houses, or other premises, which are not by his will ($ 9); but no gift or bequest made so exclusively appropriated, and from which by any husband to or for the benefit of his parts not so exclusively appropriated such widow of or out of his personal estate, or of person or persons shall receive any rent or
or out of any of his land not liable to dower, rents, or shall derive profit or advantage. · shall defeat or prejudice her right to dower, Section 2. Provides, that no person shall unless a contrary intention shall be declared be liable to such rates because the churches, by his will ($ 10). But nothing in this act district churches, chapels, meeting houses, contained shall prevent any Court of Equity or other premises, or any vestry rooms befrom enforcing any covenant or agreement longing thereto, or any part thereof, may entered into by or on the part of any hus- be used for Sunday or Infant Schools, or for band not to bar the right of his widow to the charitable education of the poor. dower out of his lands, or any of them ( · 11). And, nothing in this act contained shall interfere with any rule of equity, or of any | ABSTRACT OF RECENT
STATUTES. Ecclesiastical Court, by which legacies bequeathed to widows in satisfaction of dower
CHANCERY OFFICERS. are entitled to priority over other legacies ($ 12). The act then abolishes two obsolete
3 & 4 W. 4, c. 84. forms of dower : that is to say, Dower ad This act received the royal assent on the 28th ostium ecclesiæ, or Dower ex assensu patris
August, 1833, and is intituled “An Act to pro(§ 13).
vide for the Performance of the Duties of It must be remembered, that all the pre
certain Offices connected with the Court of
Chancery which have been abolished.” sent law respecting dower remains unaltered
Reciting the act 2 & 3 W. 4, c. 111, intituled - during the present year; it being enacted, “ An Act to abolish certain Sinecure Offices that this act shall not extend to the dower connected with the Court of Chancery, and to of any widow who shall have been or shall be make Provision for the Lord High Chancellor married on or before the 1st day of January, on his Retirement from Office,” by which it is 1834, and shall not give to any will, deed,
provided that the following offices, viz. the
Clerk of the Hanaper, the Clerk of the Crown contract, engagement, or charge executed,
| in Chancery, the Clerk of the Patents, the Clerk entered into, or created before the 1st day of the Custodies of Lunatics and Idiots, the of January, 1834, the effect of defeating or Chaff Wax, the Sealer, the Clerk of the Preprejudicing any right to dower (§ 14). sentations, and the Clerk of Dispensations and
Faculties, should utterly cease after the 20th August, 1833 ; provided that the act should not determine any of the said offices holden in possession or reversion by any person appointed
Abstract of Recent Statutes.
thereto on or before the 1st of June then last, office of Chaff Wax, and for the expenses of until the decease or resignation of such person : the office of Sealer the like yearly sum of 501. and reciting that all the persons holding the and to the Secretary of Presentations, for the said offices, except the Clerk of the Paients, expenses of the office of Clerk of the Presentawere appointed to such offices prior to the 1st tions, the yearly sum of 501., and for the ex. June 1832: and reciting that it is necessary penses of the office of Clerk of Dispensations that competent persons should be appointed for and Faculties the like yearly sum of 501. the discharge of all or some of the duties of 5. From the time when the office of the the said offices when and as such offices shall Keeper or Clerk of the Hanaper shall become become vacant; and that it is desirable that the vacant by the death, resignation, or removal persons to be appointed to discharge the duties of the present holder thereof, all the duties of of such offices shall be paid by fixed salaries for the office shall be performed by the Clerk of such their trouble.
the Crown in Chancery, to be appointed by 1. It is therefore enacted, that the Lord Chan-virtue of this act; and there shall be paid to cellor, or other the person intrusted with the the said Clerk of the Crown for the said duties care and commitinent of the custody of the per- of Keeper or Clerk of the Hanaper the yearly sons and estates of persons found idiot, lunatic, salary of 2001. : Provided that if the said office or of unsound mind, shall have as heretofore a of the now Keeper or Clerk of the Hanaper secretary, called “the Secretary of Lunatics;" shall become vacant before any vacancy shall and that after the death, resignation, or remo- occur in the office of the now Clerk of the val of the person now holding the office of clerk Crown, that then only the duties of the said of the custodies of idiots and lunatics, all the office of Keeper or Clerk of the Hanaper shall duties of the clerk of the custodies of idiots be performed by the deputy of the now Clerk and lunatics shall be performed by the said of the Crown, until a vacancy shall occur in secretary of lunatics, in addition to his other the office of the said now Clerk of the Crown, duties : provided that the person intrusted as in the same manner as if such deputy were aforesaid may make rules and regulations in Clerk of the Crown appointed by virtue of this regard to the duties of such secretary, including | act, and that there shall be paid to such deputy such duties as he shall perform by virtue of this for the said duties of Keeper or Clerk of the act, and to alter or vary the same, as he or | Hanaper the aforesaid yearly salary of 2001. they shall think fit.
6. The said several salaries shall be taken in 2. The Lord Chancellor shall have as hereto- | full satisfaction for the duties of the said offices fore an officer called “The Purse-bearer to the respectively, and of all expenses incident to Lord Chancellor,” and a certain other secre- the performance thereof. tary, called “ The Secretary of Presentations;" 7. The several persons who by virtue of this and that from the time when the offices before act shall hereafter hold or perform the duties mentioned of Chaff Wax and Sealer, shall res of the said several offices of Keeper or Clerk pectively become vacant by the death, resigna- of the Hanaper, Clerk of the Crown in Chantion, or removal of the present respective cery, Clerk of the Patents, Clerk of the Cusholders thereof, all the duties of such several todies of Lunatics and Idiots, Chaff Wax, offices shall be performed by the said Purse- Sealer, Clerk of the Presentations, and Clerk bearer; and that when the offices of Clerk of of Dispensations and Faculties, may have, rethe Presentations and of Clerk of Dispensationsceive, and take all the fees and emoluments and Faculties, shall respectively become va- which have been accustomed to be paid and cant by the death, resignation, or removal of which of right ought to be paid to the said the present respective holders thereof, all the several officers respectively, or to any deputy duties of such several offices shall be performed or clerk of such several officers, in respect of by the Secretary of Presentations for the time the said several offices, as the same would have being..
been payable if this act and the said recited act 3. His Majesty, his heirs and successors, un- / had not been passed; and that such fees and der their Royal Sign Manual, may nominate emoluments shall be accounted for once in and appoint fit persons to fill the said several every three months, commencing in the first other before-mentioned offices of Clerk of the instance from the date of such appointments Crown in Chancery and Clerk of the Patents, respectively, and shall be paid by the said as vacancies may occur; and such persons so oficers respectively into the receipt of his Ma. to be nominated and appointed shall hold their jesty's Exchequer, and be carried to and made respective offices during good behaviour. part of the consolidated fund of the United
9. From the said 20th August, 1833, as to Kingdom of Great Britain and Ireland ; and the office of Clerk of the Letters Patent, and the account of the party so paying such fees from and after the death, resignation, or re- shall be verified by his oath, which oath any moval respectively of the several holders of one of the Masters in Ordinary of the High the said other offices, there shall be paid to the Court of Chancery is hereby required and Clerk of the Crown in Chancery the yearly authorized to administer. salary of 8001.; to the Clerk of the Patents 8. The said several salaries shall be issued the yearly salary of 4001.; to the Secretary of out of and be chargeable upon the consolidated Lunatics, for expenses attending the office of fund, after paying or reserving sufficient to Clerk of the Custodies of Idiots and Lunatics, pay all such sums as have been directed under the yearly sum of 2001.; to the Purse-bearer any former act or acts to be paid out of the the yearly sum of 501., for the expenses of the same fund; and the said salaries shall be paid
Form of Writ under the Law Amendment Act.- On Tithe Suits.
quarterly, clear of all fees, rates, taxes, and I given by the act next herein mentioned; be it deductions whatsoever, at the four usual days enacted, that the said office shall and may conof payment in the year, that is to say, the 5th tinue and be in force, and that fit and proper January, the 5th April, the 5th July, and the persons may be from time to time appointed to 10th October in each year, the first payment the same, with all the powers, authorities, and to be made on such of the said days as shall duties, fees, rights, and privileges, given to or next happen after the appointment or succes- imposed upon the said office by an act passed sion to the said offices respectively shall have in the second and third years of the reign of taken place.
| his present Majesty, intituled “An Act to 9. And reciting that the office of Clerk of amend the Laws relating to Bankrupts,” any Inrolments in Bankruptcy is by the said recited thing in the said first-recited act to the conact also directed to cease as therein specified, trary thereof notwithstanding. but power to re-appoint to the said office is
FORM OF WRIT UNDER THE LAW AMENDMENT ACT, FOR THE TRIAL
OF AN ISSUE.
WILLIAM THE FOURTA by the grace of God of the United Kingdom of Great Britain and Ireland, King, Defender of the Faith, to the Sheriff of our County of
WHEREAS A. B. in our Court, before the Barons of our Exchequer, at Westminster, on the day of last impleaded C. D. of a plea of trespass on the case upon promises. FOR THAT WHEREAS, one &c., (here copy the declaration) and thereuponhe brought suit: AND WHEREAS the defendant on the
day of last by
his Attorney, came into our said Court and defended the wrong and injury when, &c.; and saith that he did not undertake or promise in manner or form as the plaintiff hath above thereof complained against him, and of this he put himself upon the country, and the plaintiff doth the like: And WHEREAS, the sum sought to be recovered in the said plea, and indorsed on the writ of summons therein, does not exceed 201.; and it is fitting that the issue above joined should be tried before you the said Sheriff of
We therefore, according to the form of the statute in such case made and provided, command you that you do summon twelve free and lawful men of your county, duly
qualified according to law, who are in nowise akin to the plaintiff or to By order of the defendant, who shall be sworn truly to try the issue above joined the Hon. Mr. } between the parties aforesaid, and that you proceed to try such issue acBuron
-)cordingly; and when the same shall have been tried in manner aforesaid ; By Rule of 2
We command you that you make known to the Barons of our said ExcheCouri, dated, squer what shall have be
quer what shall have been done by virtue of this writ, with the finding 8 c. b. Sof the Jury hereon indorsed on the day of next, that
judgment may be given thereupon: WITNESS, John Singleton Lord Date of 1880-Lyndhurst, at Westminster, the day of in the year of ing of Writ. Jour Reign.
Attorney for the Plaintiff.
ON THE TITHE SUITS TO SAVE THE | vations worthy of insertion in your journal, in PRESCRIPTION ACT.
the hope of removing some portion of the numberless misapprehensions which exist on
the subject, and more especially those (for To the Editor of the Legal Observer. some there are) which affect and unfairly im
peach the legal profession. The tithe suits instituted with reference to Whether the tithe-owner has an equal right Lord Tenterden's Act, continuing to excite with any other subject to require the enforcepublic attention, you may deem a few obser- | ment of the laws of his country, is a position
On Tithe Suits to save the Tithe Prescription Act.
I do not propose to discuss; but assuming | be previously instituted, for the late debate he has such right, then the accusations of op-displayed a sad lack of correct information. pression cannot be well founded, unless it be As an instance, take the denounced case of in the mode of suing. If suits have been mul- Kendal, which, when examined, will be seen tiplied, or so instituted or otherwise conducted was a singularly unfortunate selection for the as to render them unnecessarily expensive or cavillers at the church. The persons sued in vexations, the legal profession, I will not that parish were never computed at less than shrink from admitting, and they alone, have to 1500; and according to some of the members, answer it, as the form of proceeding rests there was that number of suits. All the bills solely with the complainant's solicitor and were represented as instituted to save the counsel. Has there been such oppression? operation of Lord Tenterden's Act,-all filed
Mr. Blamire, on the second reading of his by the same person, and he the clergyman,bill, candidly admitted what is unquestionable, and to enforce an income of 10,0001. a year. though since continually overlooked; namely, In no one respect were these representations that the operation of Lord Tenterden's Act accurate; nor was it stated, as in justice it could be claimed in respect of any tenement; ought to have been, that Kendal in extent, if so that where it was intended to dispute any not in population, though the latter exceeds claimed exemption from tithe in kind, nothing | 15,000, is one of the largest in the kingdom. short of proceeding against the occupant of The great tithes of the parish belong to Trinity each teneinent in respect of which the exemp- College Cambridge, as lay iinpropriators, and tion was claimed, would suffice; consequent- who for upwards of a century, and by a series ly the persons to be sued were marked out, of leases, have granted them to the family of not by an arbitrary, but a defined rule. A the present lessees. These lessees, more than tithe-owner can sue with more safety in equity twelve years since, filed a bill against some of than at common law. A suit cannot be worked the fariners in the parish for titre in kind, inwithout infinite danger, and consequent injus. cluding the tithes of agistment, green crops, tice, to a complainant, if more than from eight &c. As to these tithes, the answer of the to about twelve defendants are included. This farmers was not a modus, not an exemption, is not only well known to every practical equity but that the vicar, whom they had never, or barrister, but can be most clearly demonyet have paid, was entitled to them. The strated. As, however, the explanation might vicar was made a party to the suit; he did not be turned to a mischievous purpose (for some court litigation, though his right was so adsolicitors, in the hope of saving expense, have mitted and deeined clear, and though his inunadvisedly exceeded the safe number of de- come from the parish would by success have fendants,) it is better to omit it. Where seve- been abundantly liberal, whilst up to the last ral bills, with the same issue, have been filed, return it was under 3001. per annum. The has any one included in it less than eight de. first cause heard was before the Vice Chanfendants, or has there been any other unneces-cellor, about two years since, when the vicar, sary expense occasioned? If so, it must be in accordance with his previous forbearance, known to the tithe defendants, who, it must be declined taking an active share-content to admitted, are sufficiently ready to proclaim accept whatever should be declared to belong their supposed grievances, and should be in to him. The judgment was in favor of the stanced. No such case has been as yet ad- lessees. The farmers appealed; and as re. duced. In the Kendal suits, to which suchgards the agistment, green crops, &c. sucpointed reference was made in Parliament, the ceededa in obtaining issues at law; one of number of defendants in each suit vary from ten to thirteen. Whilst Mr. Blamire's bill was under discussion, it was hoped some of
b The number of tithe bills filed with referyour correspondents would have considered whether the bill, as in justice it ought, dealt
ence to Lord Tenterden's Act, is urged, as equally with complainant and defendant, and
shewing the tithe owner's watchful care over, whether all the benefit contemplated by the
and rigidness in exacting his rights; but is it bill could not, as is at least debateable, have
not rather an irrefragable proof of his past forbeen obtained, and with more fairness and
bearance or laxity? effect, by the parties themselves, and as their
. In the Times Paper of the 4th September,
the number of bills filed by the vicar alone, is common interests dictated, by short and inexpensive orders in the suits, than hy any
stated at 1000, as from a respectable quarter. enactment. However this might have been,
On the 6th, they admit having been corrected, the late interference of Parliament, and the
and promise to communicate with their original extraordinary remarks then made, a have so
correspondent and publish his answer. Where raised the expectations of the tithe defendants,
is it? that legislation cannot now be easily dispensed
d In justice to the Vice Chancellor, it should with. It is hoped, however, that inquiry will
be stated, that the fariners' counsel had, at the hearing before him, overlooked two material
documents supporting the vicar's title; and it a Mr. William Brougham, a Master in Chan
was mainly that circumstance, and to try the
| effect of these documents, that the Lord Chancery, is reported as saying, that nine out of ten of the Kendal suits now pending, and which
ich cellor so far listened to the appeal as to direct
"the issues. may judicially come before him, must fail.
On Tithe Suits :- Imprisonment for Debt.
which was subsequently tried, and found in ing, against a tenant of my Lord Lonsdale, for favor of the lessees. In August last, the Lord setting aside a claimed modus. Chancellor granted a new trial on the issue. Sept. 25, 1833.
R. The success of the farmers, such as it was, on the appeal and on the application for a new trial, was founded on the title of the vicar: they themselves attempted not to adduce any other answer. defence or argument than his ON THE LAW OF IMPRISONMENT title. The Lord Chancellor enquired what
FOR DEBT. difference it could make to the farmers whether they paid the lessees of the great tithes or the vicar. On which Mr. Duckworth, one of
To the Editor of the Legal Observer. the counsel of the lessees, replied, without Sir, being contradicted, that the object of the Notwithstanding the deference due to the farmers was to cheat both.
great authorities who have vindicated the pracThe vicar finding Lord Tenterden's Act tice of imprisonment for debt, I confess I am coming into operation, with the vicarial rights unable to discover anything very cogent in the still unascertained, and that his further for- reasonings advanced in its favour. Provided a bearance might compromise those rights, and person in insolvent circumstances intimate his for ever, was driven to consider whether he situation to his creditors, and offer to make a would be justified in such forbearance. With voluntary surrender of his property to them, he whatever readiness and patience he might subhas, it appears to me, done all that should be mit to a sacrifice of his own income and rights, required of him, and ought not to undergo any he deemed he could not honestly compromise imprisonment. If he has deceived his creditors the rights and incoine of others, his successors. by false representations, or if he conceal or On his enquiring of the committee who con- fraudulently convey away any part of his producted the farmers' defence, whether, if they perty, he should of course be subjected to the succeeded against the lessees by virtue of his pains and penalties attached to swindling ; but title, they would respect that title; they re. when such practices are not alleged, or cannot plied, with candour, if not honesty, they would be proved, sound policy, I apprehend, would if successful against the lessees, and he made dictate that creditors ought to have no power any claim, resist lim. Under these circum- over the persons of their debtors, and that they stances, with reluctance, deferred to the last should be entitled only to their effects. It is said, moment, and as a matter of duty, the vicar | indeed, that the fear of imprisonment operates filed bills. The lessees, on succeeding before as a check to prevent persons from getting into the Vice Chancellor, and being still resisted, debt, and so no doubt it does ; but then it filed a number of other bills, and lately more, must, on the other hand, be borne in mind, that and so as to include all the farmers who did the power to imprison tempts individuals to not chose to submit to the decision. However trust to its influence to enforce payment of the whole claim to tithe was made, and bills their claims, and makes them less cautious in to determine it existed years before Lord Ten-their inquiries as to the condition and circumterden's Act was contemplated. The whole stances of those to whom they give credit. number of bills filed by the lessees is fifty-six, The carelessness of tradesmen, and their excomprising about 600 persons as defendants: I treme earnestness to obtain custom, are more whilst that of the vicar is forty-nine, com-than anything else the great causes of insolprising about 550, of the same 600. One vency; and the power of imprisoning merely member, and I observed with surprise and tends to foster and encourage those habits. If regret it was the Solicitor General, is reported a tradesman trust an individual with a loan of as having stated that 1500 defendants were in money or goods, which he is unable to repay, effect the same as so many suits. Whilst every he has made a bad speculation ; but why ought practitioner in equity knows that suits could he, because he has done so, to be allowed to not be extended beyond the number of bills; arrest the debtor's person ? If he wished to nor could the complainants, whom it was have perfect security, he either should not hare sought to control, render the suits, though the dealt with him at all, or dealt with him for defendants might, more expensive than as if ready money only : such transactions on the eich contained only one individual. The ten part of tradesmen are perfectly voluntary, and thousand a year income was equally over if they place undue confidence in a debtor who stated.
has not misled them by erroneous representa. The Lord Chancellor's precept and example tions of his affairs, they have themselves only are so much regarded by the country, on such to blame. a subject, that it is to be regretted he did not, It would really therefore be for the advanin one of his speeches on throwing out Mr. tage of creditors, were all penal proceedings Blamire's bill, take occasion to announce that against the persons of honest debtors abolished. so far from seeing any injustice or other im- A tradesman ought rather to trust to his own propriety in endeavouring to avert the opera- prudence and sagacity to keep him out of iion of Lord Tenterden's Act, he, the Lord scrapes, than to the law, for redress ; he may Chancellor, had himself, and as lessee of the deal upon credit with those whom he knows. Reverend John Heelis, the rector of the parish but he should deal for ready money only with of Brougham, filed a bill, which was still pend those of whose circumstances and characters he