Notes on the Law of Real Property Amendment Act. 451 It will be recollected, that a warranty future, and whether vested or contingent, into was implied in the word "exchange," and or upon any tenements or hereditaments in the same construction attached by the England, of any tenure, may be disposed of by common law to the word "grant," unless deed; but that no such disposition shall, by force only of this act, defeat or enlarge an qualified by covenant. It was, conseestate tail; and that every such disposition by quently, not used where trustees were the a married woman shall be made conformably conveying parties, except in the case of to the provisions, relative to dispositions by incorporeal hereditaments. The same married women, of the 3 & 4 Wm. 4, c. 74, or effect sometimes belonged to the word in Ireland, of 4 & 5 Wm. 4, c. 92.” "give," and to partitions between co- Before the abolition of fines and recoparceners. These implications are now veries, as observed by Mr. Shadwell,a a terminated by the present act. contingent remainder or executory inteThe tortious operation of a feoffment, rest might be conveyed by the party conor its power of passing the fee simple, tingently entitled, by a fine, and since that though the feoffer might be entitled only act, as before it, the equitable interest for life or years, has been properly abo- might be passed. The present act supplies an omission in the 15th section of the Fines and Recoveries Act, under which, though an estate tail in contingency could be conveyed, other contingent estates were not provided for. lished. The 5th section is to the same effect as the 11th section of the previous act, viz., that persons not named in an indenture may take under it, and that it shall take effect though not actually indented. It is thus enacted,--- By the Transfer of Property Act, it was doubtful whether it was intended to give married women a power, under the 5th "That, under an indenture, executed after the 1st October, 1845, an immediate estate or section, of conveying their contingent interest in any tenements or hereditaments, and interests. The power was given to "any the benefit of a condition or covenant, respect-person," without any terms of limitation; ing any tenements or hereditaments, may be strictly, therefore, not only married women, taken, although the taker thereof be not named but infants and lunatics might be coma party to the same indenture; also, that a deed, executed after the said 1st October, purporting to be an indenture, shall have the effect of an indenture, although not actually indented." prehended in the clause. But it would be too absurd to suppose that the legislature intended to empower infants and lunatics to convey their contingent interests; and therefore it might have been inferred, that It was formerly considered that no per- neither could married women be included. son, not being a party to an indenture, These doubts are removed by the present could take an immediate interest in it. enactment, and the subjects of conveyance This is now expressly altered. The for- are confined to " tenements and hereditamer act was supposed to abolish not only ments of any tenure." Some questions the act of indenting, but the name of an may, however, still remain as to the effect indenture. Now, however, this ancient of the amended enactment with regard to designation is restored; and this seems contingencies in copyholds; but into these desirable, as distinguishing it from other points it will not be necessary at present deeds. The former advantage is also to enter. restored, by which all parties claiming under an indenture are estopped from disputing its effect. The 6th section corresponds mainly with the 5th of the late act, relating to contingent interests and rights of entry, but enjoining, in the case of married women, a conformity to the acts for the abolition of fines and recoveries. "That, after the 1st October, 1845, a contingent, an executory, and a future interest, and a possibility coupled with an interest, in any tenements or hereditaments of any tenure, whether the object of the gift or limitation of such interest or possibility be or be not ascertained, also a right of entry, whether immediate or The 7th section of the present act is entirely new, empowering married women to disclaim estates or interests by deed, viz. : "That, after 1st October, 1845, an estate or interest in any tenements or hereditaments in England, of any tenure, may be disclaimed by a married woman by deed; and that every such disclaimer shall be made conformably to the provisions of the Act for the Abolition of Fines and Recoveries." It appears to have been doubtful whe 452 Notes on the Law of Real Property Amendment Act.—Points in Common Law. ther, as a disclaimer could not be made by, of the late act, which have been repealed way of fine, the deeds substituted by the and not re-enacted. They are,Fines and Recoveries Act could be effectually used for the purpose of disclaiming. The new act, following the Irish Act, 4 & 5 W. 4, c. 92, removes this defect. The 8th section resembles the corresponding section in the previous act, protecting contingent remainders against the premature failure of a preceding estate. Thus, it is enacted, "That a contingent remainder, existing at any time after the 31st December, 1844, shall be, and, if created before the passing of this act, shall be deemed to have been, capable of taking effect, notwithstanding the determination, by forfeiture, surrender, or merger, of any preceding estate of freehold in the same manner, in all respects, as if such determination had not happened." 1st, The power given to executors to con. vey mortgaged estates without the concurrence of the heir or devisee; and, 2ndly, To trustees to give effectual discharges, without occasioning the necessity of the party's seeing to the application of the money. These powers have been repealed, and the reasons for the repeal appear to be, that the power conferred was necessarily accompanied by conditions, the performance of which might at a future time be difficult of proof, and yet could not be dispensed with.c not to extend to Scotland. In closing our remarks,-which we trust are sufficient to direct the attention of The Transfer of Property Act enacted, practitioners to the nature and scope of that all future contingent remainders the alterations effected by this act,—we should take effect as if they had been exe- must refer, for further explanations and cutory devises, and that existing contingent details, to the learned annotations which remainders should not fail by the determi- have been made on the act by several nation of the preceding estate in any other authors, and, amongst others, by Mr. way than such as it was by its creation Stewart and Mr. Neale. The student, limited to determine. There were some also, may be referred to the 2nd volume of dangers and difficulties occasioned by this Blackstone's Commentaries, Cruise's Dialteration, which are avoided in the new gest, and Fearne on Contingent Remain enactment. The 9th section, though different in terms, is substituted for the 12th of the previous act, relating to the remedies for rent and covenants in a lease on the merger of the immediate reversion : ders. For our readers in general, we have not deemed it necessary, (nor is it indeed suitable to these pages,) to enter at large on several niceties of doctrine in the law of real property, to which the act relates. POINTS IN COMMON LAW. ACQUIRED.1 "That when the reversion expectant on a lease, made either before or after the passing of this act, of any tenements or hereditaments, of any tenure, shall, after the 1st October, 1845, be surrendered or merge, the estate which shall PROPERTY IN WILD ANIMALS for the time being confer as against the tenant under the same lease the next vested right to the same tenements or hereditaments, shall, to the extent and for the purpose of preserving such incidents to, and obligations on, the same reversion, as, but for the surrender or merger thereof, would have subsisted, be deemed the reversion expectant on the same lease.” The inconvenience which this clause is intended to remedy arising out of the doctrine of merger was, that though after the merger the lessee remained personally liable to the original lessor upon the covenants with him, the lessor could not transfer to the reversioner the right to sue on those covenants. The object was imperfectly effected in the former act, and the clause has been amended in the present. It is now important to notice two clauses A CASE was not long since argued and determined in the Court of Queen's Bench,a remarkable, if only for the reason, that the facts on which it was founded might as readily have arisen in a primitive state of society, and that in deciding it the judges derived little assistance from the light afforded by authority, and were compelled to fall back upon the principles of natural law, applicable alike to the present and the earliest stages of civilization. It was an action of trespass, brought by the owner of one fishing boat against the owner of another, under the following circumstances: A very large shoal of that although the fish had been reduced into such a condition that it was in the highest degree probable the plaintiff' would have been in possession of them if not interrupted, yet he had not in fact become possessed of them, or in other words, brought the animals into his actual power. For this reason the judgment was entered for the defendant. mackarel came into the bay of St. Ives sion. The judgment of the court in this and the plaintiff's boat put out, and her case proceeded altogether on the ground, crew shot their sean, which was nearly 140 fathoms long, and drew it in a semicircle completely round the shoal, with the exception of a space of from seven to ten fathoms. Before the plaintiff's net could be drawn closer, the defendant rowed in his boat through the open space, shot his sean, enclosed the fish, and captured the whole shoal, the estimated value of which was 5691. The point for consideration was, whether, under those circumstances, an action of trespass could be maintained; PROCHEIN AMY ADMISSIBLE AS A WITand it was conceded that the determination of that question was referrible to the fact, whether or not the fish were virtually in the possession of the plaintiff. NESS UNDER 6 & 7 VICT. c. 85. which effected so extensive and beneficial Lord Denman's Act, (6 & 7 Vict. c. 85,) a change in the law of evidence, by deOn the part of the plaintiff, Justinian, claring that no person shall be excluded Bracton, the law of Scotland, and the custom from giving evidence by reason of incaof the Greenland Whale Fishery, were referred pacity from crime or interest, but that any to; but it was admitted, that the only case person offered as a witness shall be adresting on the general law of England, and mitted to give evidence on oath, notwithapplicable to the subject, was Churchward v. e "Provided, that this act shall not render competent any party to any suit, action, or or any lessor of the plaintiff, or tenant of preproceeding, individually named in the record; mises sought to be recovered in ejectment; or the landlord or other person in whose right any defendant in replevin may make cognizance; Studdy, which, though relied on by the standing that such person may have an counsel on both sides, does not appear to have interest in the matter in question, contains weighed much in favour of either, as it was not an exception to this general enactment, alluded to by the judges when pronouncing which is in these terms:their judgment. In Churchward v. Studdy, the plaintiff, with his dogs, pursued a hare into the defendant's ground, and before the dogs had actually seized it, a labourer, acting as an associate of the hunters, and to assist them, took up the hare. Upon this state of facts it was held, that the property in the hare was in the plaintiff; but Lord Ellenborough observed, that the case would have been different if the labourer had taken up the hare for the defendant, or as an indifferent person, before it was caught by the dogs. For the defendant it was admitted, that where an animal once taken escapes, the property being once vested is not lost, nor acquired by a subsequent taker; but it was submitted that was different from the proposition here contended for, which was in effect, that where an animal nearly taken escapes, the subsequent taker does not acquire the property. or dual behalf any action may be brought or any person in whose immediate and indivihusband or wife of such persons respectively." defended, either wholly or in part; or the Upon analyzing this exceptive provision, it will be found to comprehend four distinct classes of persons: 1st. Parties individually named in the record. 2ndly. Parties substantially interested and named in the record. 3rdly. Persons interested as being the real parties, and in whose name and behalf any action may be brought. 4thly. The husband or wife respectively of any person comprehended in the preceding classes. The construction to be put upon three out of the four branches into which this proviso is divisible, became the subject of judicial consideration in a late case in the Court of Exchequer. The plaintiff, who was an infant sued by his father, who was admitted as prochein amy, to recover remuneration for his services as a clerk. 8 Sinclair v. Sinclair, 13 Mees. & W. 640; 14 Law J. 109, Ex. at the trial, the prochein amy and his wife of selecting his own legal adviser; and, if were both examined as witnesses on behalf dissatisfied with the person first selected, of the infant, after an objection had been that he should be permitted, at any stage taken to their competency, and a verdict of the cause, to substitute another. When was taken for the plaintiff. The question for the court was, whether the prochein amy and his wife were properly admitted as witnesses? a party has once authorised an attorney to act for him in a particular suit, it is obviously necessary, in order to preserve regularity in the proceedings, and that the should communicate, that the attorney adverse party might know with whom he first appearing on the record should not On behalf of the defendant it was submitted, that the prochein amy was a person falling within both the first and second classes of persons expressly excepted from the general en- be changed without the leave of the court; actment, and his wife a person falling within but this permission is granted as of course, the fourth class. The prochein amy was a when the suitor undertakes to pay his first person individually named in the record, within attorney for his services,—the fact that a the first class. Being once appointed, the change has been made being of course prochein amy has such control over the suit, notified to the opposite party. The prin that even the infant cannot countermand it; was and the prochein amy is the person liable to ciple involved in this rule of practice is the defendant, if successful, for costs. He explained in a late case in the Court of therefore substantially interested and Common Pleas.i named in the record, within the second branch of the proviso. On the other side it was An action of trover was brought by a person argued, that a prochein amy is not a party to named Rolfe, against Johnson and Delacour, the action individually named in the record, the former being the official assignee, and the for although named, it is only as an attorney is latter the creditors' assignee, of one Gough, a named that he is not a party is clear from the bankrupt. The two defendants appeared in language of the declaration and pleas, which name the infant as plaintiff; and the circumstance that he was liable for costs did not alter his character. the first instance by the same attorney, and jointly pleaded the same pleas. Three days before the trial, however, the defendant Johnson obtained an order to change his attorney, After adverting to the view already and attorney. The verdict being for the defenand appeared at the trial by separate counsel taken by this court of the character of a dants, the master, on taxation, allowed separate prochein amy in Morgan v. Thorne, the costs to Johnson, including instructions for Barons,, adhering to that view, determined brief, drawing and copy for counsel, fee to that a prochein amy is not a party to the counsel on brief and consultation, fee for the suit, but simply a person appointed by the attendance of the substituted attorney at the court to look after the interests of the review the taxation, on the ground that the trial, &c. A rule was afterwards obtained to infant, and manage the suit for him. He separate costs to Johnson were improperly differed from an attorney, because he had allowed. In answer to this rule, an affidavit a control over the suit; but the plaintiff was produced from Johnson, stating that he and defendant were the only parties to it. had reasonable grounds for believing that his For these reasons, the court thought a interest would be better protected by his own prochein amy did not fall within the ex-attorney than by the attorney whose name ception to the general enactment, by by his co-defendant, and explicitly denying appeared on the record, and who was appointed which all objection to a witness on the that the change of attorney had been made with ground of interest was taken away. The a view to increase the costs. court was therefore of opinion, that the evidence of the prochein amy · and if his evidence, of course the evidence of his wife had been properly admitted. POWER TO CHANGE ATTORNEY.-COSTS OF Perhaps there is no privilege more important, as regards the public and the profession, than that the suitor in every court should have the unrestricted power h b 7 Mees. & W. 400, The court refused to interfere with the taxation, the master having exercised a sound discretion; and Tindal, C. J., expressly stated, that "a party having reason to be dissatisfied with the attorney whom he has employed, may change his attorney at any stage of the cause." The of attorneys had been colourable, the court, however, observed, that if the change question as to the allowance of costs would have been different. New Statutes Effecting Alterations in the Law. 455 NEW STATUTES EFFECTING ALTERA-, more of the players exclusively of the others, TIONS IN THE LAW. GAMES AND WAGERS. 8 & 9 VICT. c. 109. or that the chances of any game played therein are not alike favourable to all the players, including among the players the banker or other persons by whom the game is managed, or against whom the other players stake, play, or bet; and every such house or place shall be deemed a common gaming house such as is contrary to law and forbidden to be kept by the said act of Hen. 8, and by all other acts containing any provision against unlawful games or gaming houses. An act to amend the Law concerning Games and Wagers, [8th Aug. 1845.] WHEREAS the laws heretofore made in restraint of unlawful gaming have been found of no avail to prevent the mischiefs which may happen therefrom, and also apply to sundry games of skill from which the like mischiefs cannot arise: Be it enacted by the Queen's most excellent Majesty, by and with the advice warrant.-And be it enacted, That in every and consent of the Lords spiritual and temporal, and Commons, in this present parliament assembled, and by the authority of the same,— 3. Power of justices may be exercised under case (except within the metropolitan police district) in which the justices of peace in every shire, and mayors, sheriffs, bailiffs, and other 1. Repeal of part of 33 H. 8, c. 9.-That so head officers within every city, town, and much of an act passed in the 33 H. 8, c, 9, in- borough, within this realm, now have by law tituled "The Bill for maintaining Artillery, and authority to enter into any house, room, or the debarring of unlawful Games," whereby place where unlawful games shall be suspected any game of mere skill, such as bowling, coyt- to be holden, it shall be lawful for any justice ing, cloyshcayls, half bowl, tennis, or the like, of the peace, upon complaint made before him is declared an unlawful game, or which enacts on oath that there is reason to suspect any any penalty for playing at any such game of house, room, or place to be kept or used as a skill as aforesaid, or which enacts any penalty common gaming house, to give authority, by for lacking bows or arrows, or for not making special warrant under his hand, when in his and continuing butts, or which regulates the discretion he shall think fit, to any constable, making, selling, or using bows and arrows, and to enter, with such assistance as may be found also so much of the said act as requires the necessary, into such house, room, or place, in mayors, sheriffs, bailiffs, constables, and other like manner as might have been done by such head officers within every city, borough, and justices, mayors, sheriffs, bailiffs, or other head town within this realm, to make search weekly, officers, and, if necessary, to use force for makor at the farthest once a month, in all places ing such entry, whether by breaking open doors where houses, alleys, plays, or places of dicing, or otherwise, and to arrest, search, and bring carding, or gaming shall be suspected to be before a justice of the peace all such persons had, kept, and maintained, shall be repealed, found therein as might have been arrested and also so much of the said act as makes it therein by such justice of the peace had he been lawful for every master to license his or their personally present; and all such persons shall servants, and for every nobleman and other be dealt with according to law, as if they had having manors, lands, tenements, or other been arrested in such house, room, or place by yearly profits for term of life, in his own right the justice before whom they shall be so or in his wife's right, to the yearly value of 1007. brought; and any such warrant may be in or above, to command, appoint, or license, by the form given in the first schedule annexed to his or their discretion, his or their servants or family of his or their house or houses to play at cards, dice, or tables, or any unlawful game, as therein more fully set forth, shall be repealed; and that no such commandment, appointment, or license shall avail any person to exempt him from the danger or penalty of playing at any unlawful game or in any common gaming house. this act. 4. Penalties on gaming house keepers, &c.— And be it enacted, That the owner or keeper of any common gaming house, and every person having the care or management thereof, and also every banker, croupier, and other person who shall act in any manner in conducting the business of any common gaming house, shall, on conviction thereof, by his own confession, 2. What shall be sufficient evidence that a or by the oath of one or more credible withouse is a common gaming house. And whereas nesses, before any two justices of the peace, doubts have arisen whether certain houses, besides any penalty or punishment to which he alleged or reputed to be opened for the use of may be liable under the provisions of the said subscribers only, or not open to all persons act of Hen. 8, be liable to forfeit and pay such desirous of using the same, are to be deemed penalty, not more than 1007., as shall be adcommon gambing houses; be it declared and judged by the justices before whom he shall enacted, That, in default of other evidence be convicted, or, in the discretion of the justices proving any house or place to be a common before whom he shall be convicted, may be gaming house, it shall be sufficient, in support committed to the house of correction, with or of the allegation in any indictment or information that any house or place is a common gaming house to prove that such house or place is kept or used for playing therein at any unlawful game, and that a bank is kept there by one or without hard labour, for any time not more than six calendar months; and on nonpayment of any penalty so adjudged, and of the reasonable costs and charges attending the conviction, the same shall be levied by distress and sale of the BB 5 |