Review: Hayes's Introduction to Conveyancing. would be equivalent to the fine or recovery, or, if not, to a deed expressly purporting to produce the full effect (which the act imparts) of the fine or recovery. The operation of future warranties as a bar to issue in tail and remainder-men (Butl Co. Litt. 373 h, n. 2) is also taken away (§ 14). If the act had stopped here, the statute of Westminster 2, de donis conditionalibus, 13 Edw. 1. c. 1, would have recovered its original force, and entailed estates would consequently have ceased to be 405 the act are, "as if his estate were an estate at law in fee simple absolute," which must be interpreted as if an estate in fee simple absolute occupied the very place of the estate tail;" so that if (for example) an estate tail be limited in remainder expectant on a particular estate, an assurance adapted to pass a remainder in fee will satisfy the enactment. The test, therefore, to be applied in order to ascertain the appropriate mode of assurance is-first, to consider the person intending to alienable. In regard, therefore, to the sub-convey as owner of a legal estate in fee simple; sequent clauses, substituting other modes of alienation by tenants in tail, the act must be considered as an enabling act; and it is worthy of remark, that the power of breaking through the fetters of a strict settlement, which power, as it existed under the old law, had been gained by legal cunning and established by judicial connivance (Tultarum's case, 12 Edw. 4) in contravention of the statute de bonis, is now openly conferred (§ 15) and exactly defined by the legislature itself. "II.-The substitution, for the barring of an estate tail, and all estates and interests to take effect after the determination or in defeazance of the estate tail, of an assurance by deed (§ 40), (i. e. a writing under seal) to be inrolled (§ 41) in the Court of Chancery within six calendar months after the execution. Such assurance must be, or must purport to be, an actual conveyance inter vivos, adapted to pass the legal inheritance (§ 40) as a feoffment, a lease and release, a bargain and sale, or, if the estate tail be not in possession, a grant. It is not enough, on the one hand, that the instrument is a deed, unless it be adequate to pass the estate of the tenant in tail, considered as a legal fee simple; nor, on the other hand, that it is an assurance adequate to pass such estate, unless it be also a deed. Whether the estate tail be legal or equitable, vested or contingent; and, although the estate tail, having been once legally vested, has been divested and turned to a right; nay, even if the operation of a previous fine with proclamations, or a previous assurance under this act, has absolutely barred the issue in tail, and reduced the estate tail to the shadowy privilege of barring claimants in remainder and reversion;-still the tenant in tail, or the would-be tenant in tail, must be treated for the purposes of this act, as having a legal estate in fee simple in the land, and must convey by one of those modes of assurances which the law has appropriated to the tranfer of freehold interests. The act, in requiring a legal conveyance, as well of estates in the land, as of unsubstantial rights and equities in respect of the land, may be thought to have strained the application of technical forms beyond technical reasoning; but it was the policy of the legislature, while it abolished the old solemnities, and substituted more simple modes of assurance, still to exact the observance of ceremony, and to prevent settlements, framed for the most part with care and skill, from being annulled by instruments unadvisedly prepared, or inadvertently executed. But it should be observed that the words of and secondly, to consider the position which that estate would, if subsisting, occupy. The safe course, however, for the general practitioner will be to convey in every instance by sale and release. It is clear, that no covenant or contract, though under seal, will be of any avail as against the issue in tail, remainder-man, or reversioner. All equitable relief, in the case of a defective or informal assurance, is expressly and anxiously excluded (§ 47). The all absorbing nature of equity, ever seeking to insinuate its jurisdiction, rendered that precaution necessary. There was danger, lest, after the legislature had abolished the ancient solemnities, and conferred upon tenants in tail the power of conveying as if seised in fee simple, without any other ceremonies than sealing, delivery, and inrolment, equity should enforce the mere contract of a tenant in tail, founded on valuable or meritorious consideration; just as, in the case of a settlement to such uses as A. shall, by deed inrolled in Chancery within six calendar months after the execution, appoint, and in default of appointment, to uses in strict settlement, equity would certainly supply, in favour of a purchaser, wife, child, or creditor, the nonobservance of the prescribed formalities. "The deed, if inrolled within the prescribed time, takes effect froin the execution, as if inrolment had not been required (§ 74), but a purchaser for valuable consideration under a subsequent deed previously inrolled takes precedence (§74). The act does not require an indenture; but if the assurance adopted be a bargain and sale, it must be by deed indented conformably to the statute of 27 Hen. 8. c. 16, though, by the express provision of the act in question, inrolment within six calendar months is sufficient. The mention of an indenture suggests the observation, that fines were sometimes resorted to for the purpose of binding, and even passing, contingent interests by way of estoppel (Doe v. Martyn, 8 B. & C. 497; 2 M. & R. 485; Doe v. Oliver, 10 B. & C. 181); but as an indenture, which if intended to operate by estoppel, should not, (Right v. Bucknell, 2 B. & Ad. 278; Hermitage v. Tomkins, 2 Ld. Raym. 729; Co. Litt. 352 b) by recital or otherwise, disclose the actual state of the title, and which, in the case of a married woman, must be attended with the solemnities prescribed by this act (is equally conclusive) (see Bensley v. Burdon, 2 Sim. & S. 519), it was not necessary to make any special provision with reference to such interests. "III. The interposition of a new conserva 406 Review: Chancery Practice. devisable, and descendible qualities of a pure fee simple; but in order to render his assurance of equal efficacy with a recovery, or, in other words, in order to bar as well his estate tail, as the estates and interests limited after or in defeazance of his estate tail, he must obtain the consent of the protector (§ 34). Such consent may be given either by the same deed, or by a distinct, but antecedent or contemporaneous deed (§ 42) to be inrolled in the Court of Chancery on or prior to the inrolment of the principal assurance (§ 44); and which, once given, is irrevocable (§ 46)." The other principal objects of the act are also pointed out, and the chapter is, we think, an able production. sive power in the shape of a "protector of the tettlement" (§ 22). Under the old law, a enant in tail in remainder expectant on an estate of freehold, could not suffer a recovery with effect without the concurrence of the freeholder; for it was necessary that the person against whom the process issued should be invested with the immediate freehold; or, in other words, that there should be what was technically called a tenant to the præcipe. Sometimes the freeholder was beneficially entitled; sometimes he was a mere trustee: -in either case he might refuse to join. Accident often conferred upon a stranger, in point of interest and duty, the important power of constituting a tenant to the præcipe, while it deprived the beneficial possessor, to whom that power would seem more properly to have belonged, of all control and voice on the occasion. Besides, much investigation and attention were requisite in order to ensure a good tenant to the præcipe, and numerous recove. ries failed for want of a sufficient tenant. If the legislature had omitted to substitute any ceremony for the check afforded by the necessity of constituting a tenant to the præcipe, the adult son, tenant in tail, would have been enabled at pleasure to defeat the family settlement in the lifetime of the parent, tenant for life; on the other hand, if the legislature had provided a strictly analogous check, it would have given its deliberate sanction to an imperfect and arbitrary species of protection, in- We now present our readers with the first directly resulting from the forms of the old of the works which we have promised them. law, and appearing altogether absurd and un- It is not for us to say anything of the manintelligible when detached from the judicial ner in which it has been executed. We proceeding of which those forms were the The Practice of the High Court of Chancery. as altered by the Orders of the 3d of April, 1828; the 23d of November, 1831; the Chancery Regulation Act, 3 & 4 W. 4. c. 94; and the Orders issued in pursuance thereof, on the 21st of December, 1833 : with an Appendix, containing the Act and Orders. By a Chancery Barrister. London: Published for the Proprietors of The Legal Observer. Richards, 1834. shall, therefore, simply lay before them the preface and contents. legitimate basis. Instead of confiding the rights of the remainder-man to the technical subtleties of a fictitious process, the framers "This little work is intended to show in a of the act have originated, on principles of short compass the alterations which have been reason and policy, a new functionary, under a made in the Practice of the Court of Chancery, denomination unknown to the legal, though by the Orders issued on the 3d April, 1828, not to the constitutional history of the coun- and amended on the 23d November, 1831, and try. The protectorship is committed (§ 22) | by the 3 & 4 W. 4. c. 94, and the Orders which (subject to certain exceptions and provisions applicable to particular cases) see (as to cases anterior to the act) §§ 29, 30, and 31, to the owner (or to the person who, but for an absolute alienation, would have been owner) of the prior beneficial estate, or of the first of several prior beneficial estates, created by the settlement which creates the intail, being an estate for years determinable on a life or lives, or any greater estate other than an estate for years,-excluding, therefore, an estate for a term of years absolute, however long. have been issued under it. Many parts of the Practice which was established before these Orders and Act came into operation, remain unaltered, and are still to be found in the former works on the subject. It has been considered useless, therefore, to go over this ground again. The plan pursued has been, after stating the former practice briefly, to refer, for the details and particulars, to the former works on the subject. Those heads of Practice which have been altered, have alone been fully treated of, and these it has been endeavoured to render as ample and complete as possible. This work, therefore, will not only serve as a summary of the present Practice, but will form a Supplement to all the works on the Practice of the Court of Chancery which are already published. Should it meet the approbation of the Profession, a Se "Under this act the assurance of a tenant in tail in remainder, with limitations over, will produce, without the concurrence of any previous taker, an effect analogous to that of a fine with proclamations, (exclusive of the operation of a fine, when levied by tenant in tail in possession,) as a discontinuance; and, when so levied with proclamation, as a bar by non-cond Part, containing all necessary Forms, claim, or, in other words, such an assurance will probably be added. The following are will confer a lawful title to a fee, commensurate the works, referred to throughout, to which in point of duration with the continuance of this may form a Supplement: Newland's Pracissue in tail (§ 34), and having the alienable, tice, 3d edit., 1830; Turner and Venables' Practice, 6th edit., 1825; Smith's Practice, namely, on condition that he reduce them 1834; Grant's Practice, 3d edit., 1833. into possession during the marriage. If, therefore, the wife survive the husband, it is evident that those choses in action which Chapter I. The Officers of the Court of Chancery. Chapter II. The Offices of the Court. Chapter III. Arrangement of Business. Chapter IV. Bill, Process, and Con- the husband has not reduced into possession, tempts. Chapter V. Appearance, Answer, survive to her, as he has neglected the conand other modes of Defence. Chapter VI. In-dition, upon the satisfaction of which he was terlocutory Matters: Motions, Petitions, Affi- to derive advantage from them. With resdavits, Orders. Chapter VII. Interlocutory pect to choses in action immediately redu Applications on the part of the Plaintiff: Dismission of Bill, Reference of Answer for In sufficiency, Amendment of Bill, Production of Deeds, Payment of Money into Court, Receiver, Injunction, Ne exeat Regno. Chapter VIII. Interlocutory Applications on the part of the Defendant: Dismissing Bill for want of Prosecution, Putting Plaintiff to his Election. Chapter IX. Proceedings preparatory to, and the mode of Examining Witnesses: Replication and Rejoinder, Interrogatories, Commission to examine Witnesses, Examination of Witnesses, Publication. Chapter X. Proceedings preparatory to, and at the Hearing: Setting down Cause for Hearing, Subpœna to hear Judgment, Hearing, Decree, Issue and Special Case. Chapter XI. Proceedings in the Master's Office: Under the Chancery Regulation Act, under Decrees, Master's Report, and Exceptions thereto. Chapter XII. Further Directions, Costs, and Fees. Chapter XIII. Amendment, Reversal, and Execution of Decrees. Chapter XIV. When the Act and Orders came into operation. LAW TRACTS. No. XI. ASSIGNMENT OF A WIFE'S CHOSES IN ACTION. CHOSES in action are divided into two classes, being either in possession or reversion; and as the law with respect to each class is very different (though always springing from the same principles), it may be advisable to take a brief review of it. The right of property in a personal chattel is inseparable from the possession; the law of England does not know such a thing as the possession of a personal chattel being in one man, (unless by the authority of the rightful owner,) while the right of property is in another. If there be not possession, there is an immediate right of action; but, until possession of the chattel is obtained, there is not a right of property. Thus, therefore, (while personal property in possession of the wife before marriage, is by marriage absolutely vested in the husband,) the choses in action of the wife are by marriage given to the husband sub modo only, cible into possession, the husband may either assign them or sue upon them; thereby, in the first instance, giving; and, in the second, using the power of reduction. For the assignment of the husband, so far as relates to himself, is considered a constructive reduction into possession. Sansom v. Dewar, 3 Russ. 65. It will be requisite, however, to consider the effect of an assignment by the husband upon the wife surviving: for if the assignment be voluntary, the wife will not be bound at all; 1 B. C. C. 44: and even a valuable consideration will only bind her pro tanto, 2 Atkins, 207. And in case at the death of the husband the choses in action of the wife be vested in his assignees in bankruptcy and unreduced, the assignees are not permitted to reduce them into possession; but they will survive to the wife, as the assignees in bankruptcy took them in the same condition precisely as they were in when the bankrupt was alive, and consequently subject to the survivorship of the wife. But if the husband, before marriage, make a settlement upon a wife, in consideration of the whole or part of the wife's fortune, the husband's representatives will be entitled to the whole or part of the wife's choses in action, as the case may be; and if the husband, or his assignee in bankruptcy, must have recourse to a Court of Equity to recover the choses in action of the wife, the Court will in all cases compel a settlement on the wife, as the price of its assistance. If then there be difficulties attendant on the assignment of an immediately reducible chose in action of the wife, how much will those difficulties be increased when the chose in action is in reversion, when from its very nature it is impossible to reduce it instanter; and when, from the uncertainty of the husband's surviving the wife, it may never be reducible at all. The assignment by the husband of the wife's reversionary chose in action is in all cases invalid, should the husband die before the tenant for life, leaving the wife surviving. For, as previously observed, the condition upon which the chose in action of the wife is given to 408 Law Tracts.-New Bills in Parliament. become payable, he will appear at the insurance office, to shew the condition of his health, &c. Such a covenant as this appears to have been inserted in the assignment, which gave rise to the suit of Purdew v. Jackson; but it does not appear, from the report of the case, whether any insurance had been effected. the husband, is, that he reduce it into pos- able. For this purpose, in the assignment session. That he should do so, however, is of the chose in action, the husband should impossible, as it does not become reducible, covenant that, until the money assigned until the power of reducing it has ceased to exist. Suppose, for instance, the case of an assignment for valuable consideration. Upon the death of the tenant for life, the assignee claims-what? What the husband had a right to assign? That would be what the husband might have reduced into possession. But the husband having never reduced any thing, in fact, never having had it in his power, the assignee can claim nothing against the surviving wife or her representatives. Again, if the husband should have been a bankrupt, the case is the same; as the assignee in bankruptcy can only claim that which the bankrupt ac NEW BILLS IN PARLIAMENT. tually became possessed of. Indeed, the LORD WYNFORD'S BILL FOR RENDERING case of Mitford v. Mitford, 9 Ves. 87, goes beyond this, and decides, that even where the bankrupt husband lived until after the reversionary interest had by the death of the tenant for life become actually reducible, the assignees had no claim against the wife surviving. And if the wife join her husband in assigning parts of her reversionary chose in action, and he die before the tenant for life, leaving her surviving, although she then execute an assignment of the fund, which recites the former assignments by her and her husband, and purports to be made subject to them; she does not thereby recognize or confirm those former assignments. Nor does she acquiesce in those assignments, or waive her right to claim against them by forbearing to impeach them And till the death of the tenant for life. It may therefore be observed, in conclusion, that on a sale of the reversionary chose in action of a married woman, (in order to be safe,) it will be advisable to insure the husband's life against that of the tenant for life; as upon the death of the latter, the assignment of the husband will be binding upon him, if living; and if not, the policy of assurance will have already become avail ENGLISH JUDGMENTS EFFECTUAL IN IRE- THIS bill, which besides the support of Lord These are the measures of reform, of which we highly approve. The proposed clauses are, in substance, as follow: On final Judgments in the Courts at Westminster, the like Judgments may be entered up in Ireland, and vice versa. The preamble of the bill recites, that by affording to his Majesty's subjects in England and Ireland respectively more effectual means of enforcing at law pecuniary engagements contracted in one country by persons who reside or possess estates in the other, greater confidence will be placed in such engagements, and the interests of his Majesty's subjects in both countries be thereby promoted. 1. It is therefore proposed to be enacted, that in all cases where final judgments shall have been obtained and enrolled, or shall hereafter be obtained and enrolled, in any of his Majesty's Courts of King's Bench, Common Pleas, or Exchequer, at Westminster or in Ireland respectively, for any debt, damages, costs, or rent which shall have been thereby adjudged to be paid, it shall be lawful, after the passing of the act, for any person entitled to the bene fits of such judgment, in case such judgment shall have been obtained and enrolled in any of the said Courts in England, to enter up in New Bills in Parliament. 409 lands or goods of any such defendant, except from the time of such enrolment, and subject to the provisions in England and Ireland respectively now in force as to the docqueting of judgments, which shall extend to and regulate the effect of judgments enrolled under this act regulate the effect of judgments of the said Courts respectively. manner hereinafter mentioned a like judgment in his Majesty's Court of King's Bench in Ireland; or in case such judgment shall have been obtained or entered up in any of the said Courts in Ireland, to enter up in manner hereinafter mentioned a like judgment in his Majesty's Court of King's Bench at West-in the same manner as they now extend to and minster. The respective Courts may order a Transcript of the Record to be entered and enrolled. 2. That the Court of King's Bench in Ireland, in case such judgment shall have been obtained in any of the said Courts in England, and the Court of King's Bench at Westminster, in case such judgments shall have been obtained in any of the said Courts in Ireland, upon the production of a transcript of the record of any such judgment as aforesaid, engrossed or written upon vellum or parchment, signed by the proper officer of the Court where such judgment shall have been obtained, and certified by the said officer to be an unsatisfied judgment, and upon the production of a memorial, also engrossed or written upon vellum or parchment, signed by the party or parties claiming to be entitled to the benefit of such judgment as aforesaid, and bearing date the day of the execution thereof, and containing the names of the parties to such judgment, the Court, term, and year in which the same shall have been entered up, and the debt, damages, costs, or rent thereby adjudged, and also containing the names, residences, and description of the party or parties claiming to be entitled, and stating the character, right, or title under or by virtue of which they claim, and stating that such judgment is subsisting and unsatisfied judgment, and also stating the amount due thereon at the time of such execution, for principal, interest, and costs; and upon proof by affidavit to the satisfaction of such Court, of the signature of such transcript by the proper officer of such Court, and of the due execution of such memorial, and of the truth of the matters contained in such memorial, shall, upon motion to be made in open Court, order, by a rule absolute in the first instance, such transcript and memorial to be entered of record, and enrolled on a roll to be kept in such Courts respectively for that purpose, and to be called in the Court of King's Bench in Ireland, the roll for English judgments; and to be called in the Court of King's Bench at Westminster, the roll for Irish judgments. a Operation of Enrolments. 3. That the enrolment of such transcript and memorial shall thereupon become and be and have all the operation of a record of a judgment of the Court in which the same shall be enrolled, to all intents and purposes as if the same had been originally given and recorded in such Court: Provided, that no writ of error shall be brought upon any such record of enrolment, and that no such judgment shall affect any defendant, or any person whatsoever claiming through any such defendant, or the Effect of a Record enrolled at Westminster or in Dublin. 4. That in the case of a record enrolled in the Court of King's Bench at Westminster, such record shall have the effect of a judgment in an action in which the same has been laid in the county of Middlesex, both with respect to issuing process of execution, and with respect to all writs of scire facias; and that in the case of a record enrolled in the Court of King's Bench in Ireland, such record shall have the effect of a judgment in an action in which the venue has been laid in the county of the city of Dublin, both with respect to issuing process of execution, and with respect to all writs of scire facias. Certifying Transcript of Record. 5. That the officer who shall sign any tran.. script of any record for the purposes of this act, at the time of such signing shall make a note on the original record that a transcript has been given out for the purposes of this act, and shall endorse on such transcript that it is a true transcript of a record given for the purposes of this act, and shall endorse the number of the original roll on such transcript. Swearing Affidavits. 6. That affidavits for the purposes of this act, or for the purposes of carrying into effect or enforcing or otherwise relating to judgments enrolled under this act, to be used in the Court of King's Bench in Ireland, may be sworn before any commissioner appointed by the Court of King's Bench in Ireland to take affidavits in Great Britain by virtue of the 55 G. 3. c. 157; and that affidavits to be used in the Court of King's Bench at Westminster, may be sworn before any commissioner appointed by the Court of King's Bench at Westminster to take affidavits in Ireland by virtue of 3 & 4 W. 4. c. 42. Amount of Fees. 7. That the respective Courts of King's Bench in England and Ireland shall regulate the amount of fees to be taken by the respective officers or commissioners for the performance of any duty or duties under the authority of this act. |