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466

Changes in the Law made during the last Session of Parliament.

shall thereby have conveyed the same land, I nor any of her descendants, shall be capable such person shall be considered to have ac- of inheriting until all his male maternal anquired the same as a purchaser by virtue of cestors and their descendants shall have such assurance, and shall not be considered failed ($ 7). to be entitled thereto as his former estate or It was a verata questio in the law, whepart thereof ($ 3). And that when any | ther the nearer or more remote female anperson shall have acquired any land by pur- cestor on the paternal side should be prechase under a limitation to the heirs or to ferred. See 2 Bla. Com. 230. It has been the heirs of the body of any of his ances-decided that where a person seised of an estate tors, contained in an assurance executed ex parte materna, died without issue, the deafter the said 31st day of Dec. 1833, or un- scendants of his maternal grandfather must der a limitation to the heirs or to the heirs all be extinct before any descendant of a reof the body of any of his ancestors, or under moter maternal ancestor could inherit. Havany limitation having the same effect, con- kins v. Shewen, 1 Sim. & Stu. 257; and the act tained in a will of any testator who shall provides that where there shall be a failure of depart this life after the said 31st day of male paternal ancestors of the person from Dec. 1833, then and in any of such cases whom the descent is to be traced, and their such land shall descend, and the descent descendants, the mother of his more rethereof shall be traced as if the ancestor mote paternal ancestor, or her descendants, named in such limitation had been the pur- shall be the heir or heirs of such person, in chaser of such land (S 4).

preference to the mother of a less remote The present rule or canon of descent, male paternal ancestor, or her descendants ; which provides that land cannot lineally and where there shall be a failure of male ascend, is entirely altered by the present maternal ancestors of such person, and their act. Under it a brother or sister now in- descendants, the mother of his more remote herits from a brother as such, and not as male maternal ancestor, and her descendants, being derived from one father. Watk. Desc. shall be the heir or heirs of such person, in 111, n. (a); Collingwood v. Pace, 1 Ventr. preference to the mother of a less remote 423. This rule is first altered ; and it is male maternal ancestor, and her descendants enacted, that no brother or sister shall be ($ 8). considered to inherit immediately from his The other great alteration made in the or her brother or sister, but every descent present law is, in letting in the relations of from a brother or sister shall be traced the half blood to inherit; it having been å through the parent ($ 5).

settled rule to exclude them, so that the It is next provided that every lineal an- land would rather escheat than go to them. cestor shall be capable of being heir to any | But, in future, it is enacted, that any person of his issue; and in every case where there related to the person from whom the deshall be no issue of the purchaser, his scent is to be traced by the half blood shall nearest lineal ancestor shall be his heir in be capable of being his heir ; and the place preference to any person who would have in which any such relation by the half blood been entitled to inherit, either by tracing shall stand in the order of inheritance, so his descent through such lineal ancestor, or as to be entitled to inherit, shall be next in consequence of there being no descendant after any relation in the same degree of the of such lineal ancestor; so that the father whole blood, and his issue, where the comshall be preferred to a brother or sister, and mon ancestor shall be a male, and next after a more remote lineal ancestor to any of his the common ancestor where such common issue, other than a nearer lineal ancestor or ancestor shall be a female, so that the brohis issue ($ 6).

ther of the half blood on the part of the But the male line is still to be preferred, father shall inherit next after the sisters of as none of the maternal ancestors of the the whole blood on the part of the father person from whom the descent is to be and their issue, and the brother of the half traced, nor any of their descendants, shall blood on the part of the mother shall inbe capable of inheriting until all his paternal herit next after the mother (69). ancestors and their descendants shall have As the law at present stands, a title canfailed; and also no female paternal an- not be derived through a person who has cestor of such person, nor any of her de- been attainted. This rule, however, is scendants, shall be capable of inheriting un- altered; it being enacted, that when the til all his male paternal ancestors and their person from whom the descent of any land descendants shall have failed; and no is to be traced shall have had any relation female maternal ancestor of such person, I who, having been attainted, shall have died

Review: Price or Personal Actions.-Shelford and Berrey on the Real Property Acts. 467

before such descent shall have taken place, he anticipates them. For instance, he gives then such attainder shall not prevent any a form of affidavit for obtaining the writ of person from inheriting such land who would distringas, which appears to be calculated have been capable of inheriting the same to end the constantly recurring difficulty so by tracing his descent through such rela- often experienced, and so often complained tion, if he had not been attained, unless of, in laying a sure foundation for procuring such land shall have escheated in conse- the award of that process. The various quence of such attainder before the 1st day requisite allegations are in it distinctly enuof Jan. 1834 ($ 10).

merated and plainly instanced. The act is not to extend to any descent The appendix of forms gives precedents before Jan. 1834 ($ 11).

wholly new. In general these appear to And where any assurance executed before have been made to correspond with the new the said 1st day of Jan. 1834, or the will of Statutes and Rules, and much pains have any person who shall die before the same obviously been taken in their adaptation, 1st day of Jan. 1834, shall contain any They are also interspersed with useful praclimitation or gift to the heir or heirs of any tical directions in a new method. For inperson, under which the person or persons stance, in pp. 140, 142, the writer having answering the description of heir shall be deviated from the commonly received form entitled to an estate by purchase, then the of an affidavit to hold to bail on a bill of person or persons who would have answer-exchange (for which he apologizes by a ed such description of heir if this act had note, wherein the proposed variation is not been made, shall become entitled by vir- offered as being merely cautionary), has tue of such limitation or gift, whether the met the objections on which so much has person named as ancestor shall or shall not been said of late, as having been made the be living on or after the said Ist day of Jan. ground of discharging defendants, in many 1834 ($ 12).

cases, out of custody, on entering a common appearance.

The arrangement of the matter is such as to afford considerable facility to the prac

titioner in acquiring the information which NOTICES OF NEW BOOKS.

it contains.

Any competent person, at this time, ven. New Practice of the Courts of Law at West- turing to write on the state of practice,

minster in Personal Actions commenced by Writ, on the Principle of Uniformity, as consider Mr. Price's book a very useful proreformed by the Statutes, regulated by the duction. Rules, and expounded by the Decisions of the present Reign; including Directions for Proceeding by Summons. With an The Real Property Statutes of the 2 & 3 Appendix of Statutes, Rules, and Forms. I W .4, including those for the Limitation By George Price, Esq., of the Temple, of Actions and Suits, the Abolition of Barrister at Law. London: S. Sweet.

Fines and Recoveries, &c. ; with Explana.

tory Notes. By Leonard Shelford, Esq., This book, which professes to embrace the

of the Middle Temple, Barrister at Law. now identified Practice of the three Courts,

Sweet, Maxwell, and Stevens. 1833. is said, by the author, to be founded on an application of all the cases published and the recent Statutes relating to Prescription unpublished to the Statutes and Rules, by and Custom, Moduses and Compositions which a course of proceedings entirely new for Tithes; the Limitation of Real Acto the profession has been recently esta tions ; Fines and Recoveries, Dower, Deblished. Such a work, if well executed, scents, and the Payment of Debts out of cannot fail to be of great use to the general | Real Estate ; with Introduction, Abstracts, practitioner, whose difficulties and embar Tables, and Notes. By George James rassments are shewn by the writer, in his Berrey, of Lincoln's Inn, Barrister at preface, to be sufficiently numerous and Law. Saunders & Benning. 1833. dangerous; and the many instances of errors committed in actual practice to be met with These are publications which owe their in the text, fully justify that complaint. origin to the important Real Property Acts

From constant attendance in Court, Mr. of the last Session, although they both go Price seems to be well acquainted with the a little further back, and include some of .. Review: Shelford and Berrey on the Real Property Acts. . Shelford's work is the largest, the dearest, chattel, 72; that the rule in Shelley's case. and as it appears to us, the most carefully is so and so, 239, &c. &c.; and other ordiexecuted; although we cannot say that any nary matter, which is perfectly well known thing but common-place information is to to any one who has read the second volume be obtained from either production. Mr. of Blackstone once through with attention. Shelford gives no forms, and no practical As, however, we are anxious that our readers directions. Mr Berrey is equally deficient; should judge for themselves, we will extract merely observing that “it will be found a favourable specimen of Mr. Shelford's lathat none of them (the acts) really require bours, in the following note on 2 & 3 W. 4. the introduction into drafts in conveyancing c. 27. $ 28. of any thing of intrinsic novelty, sufficient “The possession of the mortgagee of an estate to justify its insertion in these pages.” As for twenty years, without a recognition of the to which we can only say, that however mortgage title, or any account kept upon the void of “intrinsic novelty ” these supposed footing of it, becomes the subject of equitable forms may appear to the learned author, bar to redemption, notwithstanding a clear they would have had much more claim to

title to redemption in the one party, and on

the other side, a continued mis-application of it than any part of his present book. Pass

the rents and profits committed to his care, ing this over, we shall proceed to make

contrary to his engagement, and a continued some remarks on what these works do con- breach of duty from the beginning to the tain.

end of the period, in omitting to keep and The chief fault of Mr. Shelford's notes render an account, 2 Jac. & Walk. 188; is, that they are diffuse in matters irrelevant

see Jac. Rep. 513. Before the above act, a to the subject; they do not shortly tell

Court of Equity acted with equitable rights in

analogy to the statute of limitations in the what the reader wishes to know, the alter

cases of ejectment, and held that twenty years ations made by the acts; he is burdened by possession by a mortgagee, under certain cira long, and often evidently laborious ac- cumstances, was equivalent to twenty years adcount, of parts of the law which remain un- verse possession at law. There is, however, altered; he cannot see at a glance what this material difference between adverse posparts of his text books he may stand by: session at law, and the possession of the inort

gagee: adverse possession at law is inconand what he may cut out. Now this is the

sistent with the title of the true owner, but great object of all such works as Mr. Shel- the possession of the mortgagee is consistent ford's. The annotator's information has with the equitable title of the mortgagor; been carefully collected, but appears to us twenty years adverse possession gives therefore misplaced in his present work. Thus, on absolute title to the possession at law, but the first section of the 2 & 3 W. 4. c. 100. twenty years possession of the mortgagee does for shortening the time required in claims

not in itself give title against the mortgagor

| If for twenty years, the mortgagor has suffered of modus decimandi, we are favoured with

| the mortgagee to hold as if he were the true a long account of tithes and moduses, in owner. without acknowledgment of the morta which, as we conceive, the real object of gage title, and if for twenty years the mortthe work is almost lost sight of; and the gagee has considered himself as the true same fault may be found with most of the owner and kept no accounts as mortgagee, a other notes. Mr. Shelford also does not give Court of Equity holds that this negligence of his readers credit for the average informa

the mortgagor, shall protect the mortgagee

from the difficulty which, in such circumtion on the subject matter of his work; he

stances, would attend the mortgage account; is too fond of commencing with the com- | but if within the twenty years the mortgagee mencement, and of re-copying the most has acknowledged the mortgage title, a Court familiar rules. We might give instances of of Equity inputes no negligence to the mortthe faults we have mentioned, from every gagor ; or if :vithin twenty years the mortgagee part of the work, did we not think that we has kept accounts, or otherwise dealt with the should be inflicting on our readers the usehould be inflicting on our readers the use. I property as mortgagee, he is not protected

| from the account in respect of the inortgagor's less labour we have ourselves undergone; I negligence, Hodle v. Healey, 6 Madd. 181 : but we may observe, that as a learned coun- s. C. Ves. & B. 536. The acknowledgment sel was once informed by the Court of by the mortgagee af the subsistence of the King's Bench, that he need not give a mortgage by a third party is sufficient to pre. definition of an estate in fee; so in a law- serve the mortgagor's right to redeem. Thus, book, not, professing to be one of first prin- an assignment by the mortgagee alone of his ciples, we might have been spared the in

interest, treating it as a mortgage to a third formation' that hereditaments are of two

party, Smart v. Hunt, 1 Ves. 478; Hardy v. sorts, corporeal and incorporeal, 12. 71; that

Reeves, id. 466 ; or taking notice by a will, or

any other deliberate act, reciting that he is the term frophold is onnnced to the torm!

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2 Bq. Cas. Abr. 600; Perry v, Murston, 2 Br. I husband and wife conveyed by fine an estate C. C. 399, or an assignment of his interest belonging to her as mortgagee in fee; and in treated as a mortgage upon the trusts of a set- | 1765, they conveyed by lease and release only tlement, or as a security. Hansard v. Hurdy, 18 the equity of redemption to the mortgagee, Ves. 455. So where the purchaser of an equity who had continued in possession sixty or seof redemption had the legal estate conveyed to venty years; the wife died in 1780, and on a bill him by a deed dated the 24th of August, 1796, filed by persons claiming under the heir of in which it was recited that the purchaser had the wife nineteen years after the death of some time since paid to the mortgagee the the husband, a plea of the statute of limita. money due on his mortgage, and a bill to re- tions was over-ruled, but without prejudice deem was filed on the 29th of January, 1816, to the defendants using the statute of limitait was held that the recital was an acknow. I tions as a defence in their answer. Ravald v. ledgment of the mortgage title till within twenty Russell, 1 Younge, 9. So where husband and years from the filing of the bill. Price v. Cop-wife surrendered her copyholds to the use of a ner, 1 Sim. & Stu. 347. So also redemption mortgagee in fee, and the husband alone released, was allowed after forty years possession, on the equity of redemption to the mortgagee, evidence of a contract 'entered into within who was admitted and continued in posseven years preceding the filing of the bill by session, on a bill eleven years after the husthe heir of the mortgagee, for purchase of the band's death, by the wife and her children, equity of redemption. Conway v. Shrimpton, I redemption was decreed, with an account of 5 Br. P. C. 187.' And if a mortgagee admits rents from the husband's death. Reeves v. that he has no other title it will be binding, Hicks, 2 Sim. & Stu. 403. In general, a preand the mortgagor will be allowed to redeem, I sumption arises from neither payment of the although twenty years have elapsed. Perry v. I surplus rent nor delivery of account within Marston, 2 Br. C. C. 397. Before the above twenty years ; but the presumption does not act, evidence of parol acknowledgments of the take place where the same person is to pay and mortgage within twenty years was sufficient: I receive, as in the case of a mortgagee who obRayner v. Oastler, 6 Madd. 274; but it must tains a conveyance of the equity of redemption have been clear and unimpeachable. Whiting from a party having only a limited estate Corv. White, 2 Cox, 295; Perry v. Marston, 2 Br. I bet v. Barker, 3 Anstr. 759; Ravald v. Russell, C. C. 397, more fully reported in Whiting v. 1 1 Younge, 9. Where husband and wife being White, and therefore, in a case where the ac-jointly entitled to an equity of redemption in fee, knowlegment was proved by only one witness, I conveyed by deed without a fine to the mort. the bill was dismissed. Reeks v. 'Postlethuraite, I gagee, it was held that the surviving wife or her Coop. C. C. 161. Where a decree for redemp. Theirs inight redeem at any time within twenty tion and an account have been obtained, it years from the husband's death. Price v. must be prosecuted within twenty years, other- | Copner, Sim. & Stu. 347. So the right of wise the parties will be harred; and if the time redemption was not barred by twenty years has begun to run against the ancestor, it will possession, where the mortgagee or those claiıncontinue to run on although the parties are in- ling under him, were under disabilities; Reeks fants. St. John v. Turner, 2 Vern. 418. But v. Postlethwaite, Coop. C. C. 169, who were redeinption of a mortgagee was refused, though allowed ten years within which they might an account had been delivered within twenty claim after the impediments had been removed. years by a receiver and ınanager of the estate, be. 17 Ves. 99, 184 ; 3 P. Wms. 287 n. A plea by cause it was without the authority of the mortga. a defendant of forty years possession of a mortgee, who was of unsound mind. Burrow v. Muriin, gaged estate, without account or admission of

Coop. C. C. 189. If a mortgagee enters in the any debt, was allowed, in answer to a bill set· lifetime of the tenant for life of the mortgaged ting up an old mortgage and stating an account

estate, the remainder-man will be barred of his settled, and generally that owing to infancy,

right to redeemn after twenty years from such coverture, and other disabilities, the plaintiff · entry; Harrison v. Hollins, I Sim. & Stu. 471 : I could not proceed. Blewitt v. Thomas, 2 Ves.

although it is stated to have been the opinion ljun. 669. It will be observed, that by the new of Lord Chancellor Eldon, that every person act, twenty years from the time the mortgagee who becomes successively entitled to an equity took possession, or from the last acknowledgof redemption, has his twenty years from the ment in writing, is made a positive bar to the time of his right accruing, and is not barred right of redemption; and as there is no saving by the laches of his predecessor. Pim y. in favour of persons under disabilities, it should Goodwin, cited 2 Mer. 309. Where a husband seem that they will be barred by twenty years and wife, seised in fee in right of the wife, I possession without a written acknowledgment, made a mortgage by fine, and afterwards con- unless the act can be construed so as to admit, veyed the equity of redemption by lease and by implication, a saving in their favour, similar release to the mortgagee, who remained in to that previously allowed in equity. In one possession as complete owner for more than case, payment of the principal and interest of twenty years during the life of the husband, a mortgage was decreed, although there had tenant by the curtesy, who had conveyed, it been a tender of payment of the money by the was held that the heir of the wife was not barred mortgagor to the agent of the mortgagee, and of his equity of redemption by lapse of time. a refusal to accept it, and twenty-four years had

Corbett v. Barker, 3 Anstr. 755; S. C. I Id. Jelapsed without any demand by the mortgagee. .. 138, contrá. So where in the year 1757, the Meade v. Earl of Bandon, 2 Dow. 268. It

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seems that a shorter tine than twenty years has as they found it," &c. &c. We should prenever been held sufficient to ground a presump-sume that Mr. B. must be unaccustomed to tion of a surrender of a mortgage term. Doe omnosition The « Introductions” to the d. Brundon & Smith v. Calvert, 5 Taunt. 169. Where a inortgage was inade as a collateral

Acts contain only extracts from the First security, although the mortgagee was not in

Real Property Report, and short abstracts possession for twenty years and more, yet pay-of the Statutes ; but we look in vain for any ment of interest upon the bond according to original information or practical remark. the agreement of the parties, though not ex- / We take leave of both works, regretting pressed to be on account of the mortgage, that we cannot say more in their favour. prevented the operation of the statute of limitations ; Hatchery. Fineux, Ld. Rayun. 740; Trash v. White, 3 Br. C.C. 289. So where premises were mortgaged in fee, with a proviso for reconveyance, if the principal were not paid on a given UNITED LAW CLERKS SOCIETY. day, and in the mean time that the mortgagee should continue in possession; upon special verdict, it was found that the principal was not

We are glad to find from a Report, of which we paid on the day appointed, but that the mort.

give a short abstract, that this useful Society is gagee continued in possession ; there was no proceeding prosperously. The Committee exfinding of the jury, either that interest had or press their deepest gratitude to those members had not been paid by the mortgagor. it was of the profession who have given the Society therefore held that, upon that finding, it must

their encouragement and support; and they rebe taken that the occupation was by the per

fer with satisfaction to the present state of the mission of the mortgagee, and, consequently,

funds, to the cases of charity relieved, and to that although more than twenty years had

is has the patronage with which they have been ho. elapsed since default in payment of the money, noured by some of the highest judicial funcstill the mortgagee was not barred by the sta

tionaries. With this assistance, superadded tute of limitations, as there was no adverse to the

to the income derived from the members of possession. Hall v. Doe d. Surtees and anothe Society, the Committee have been enabled ther, 5 Barn. & Ald. 687 : S. C. 1 Dowl. & I to accomplish all, and indeed more than they Ryl. 340; see Leman y. Nevenham, 1 Ves. sen.

had originally undertaken ; and they now con51, 52.

fidently state that the Society is established on

a permanent foundation. Welsh mortgages are redeemable at any | The objects of this Society are, to create time; Luwley v. Hooper, 3 Atk. 230; but if a man be permitted to hold over twenty years

1. A General Benefit Fund, for Provision in after the debt has been fully paid, it seems that

Sickness, Superannuation, and Death of a the mortgagor would be barred. Fenwick v.

Member or Wife. Reed, 1 Mer. 125; and see | Madd. Chanc. 2. A Casual Fund, to relieve Members in 519, n. (a); Yates v. Humbly, 1 Atk. 360. Distress (when not entitled to claim under the “The right to an equity of redemption may

Benefit Fund,) by Loans and Donations; and be acquired by adverse possession: thus, where also Law Clerks, not being Members, their an estate, subject to a mortgage in fee, was set-1 Widows and rammes. tled with an ultimate limitation to the right! And, To Provide Situations for Members. heirs of S. R.; and on the determination of the This Society was established, and its Rnles particular estates, A. entered, claiming to be adopted, on the 14th of April, 1832; and up entitled under the limitation, and he, and after

on, and ne; and after to the present time has continued in success. his death, his son, continued in quiet posses- ful operation. In addition to the ordinary sion, paying interest on the mortgage for plan of a Benefit Society, it has established a twenty years: it was held that the devisee Casual Fund, which has been highly advanta. really entitled under the limitation in the settle-Iceous ment, was barred of his right to the equity of lain applications for assistance from e settlegeous in its application, enabling it to enter

clerks redemption by length of adverse possession. I who are not members, or their widows and Cholmondeley v. Clinton, 2 Jac. & Walk. 1; families. S. C. 1 Dow. N. S. 299.

The Report enumerates the various cases Mr. Berrey's work is, in some respects,

which have been relieved ; and it is gratifying more to the purpose than Mr. Shelford's. 1.

to observe with how moderate an annual sum,

• contributed by the members, many instances The notes are all short, and in some in- of distress have been relieved. A satisstances appropriate; but the style is so factory account is then given of the income singular and confused, as almost to excite a and expenditure of the year; and it appears to smile. We will give two instances of this : us that the management of the affairs of the This enactment (3 & 4 W. 4. c. 27. & 14) Society, reflects credit on the committee. corrects the old anomaly of possessio fratris,

In conclusion, the Report earnestly calls of the law of which it is the reverse." p. 53. L and invite every clerk in the profession, with

upon every member of the Society to encourage " This section and the one next before, whom business or private intimacy may conwith that next after it, leave the law much nect bim, to lose po time in enrolling himself

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