118 Proposed Amendments in the Reform Act.-The General Register Bill. that in the case of three persons or partners | isting parishes or districts are referred to, or being jointly rated for 257., two might be entered on the register. 30. Doubtful whether occupiers may demand to be rated for all the rates made during the year, or upon each rate as made. 33. (Clause as to residence), so worded as necessarily to exclude from the register many valuable classes of qualified individuals, such as the seamen and fishermen of Hull, Dover, &c. Also so loosely worded, that residents in boroughs have been admitted to vote in counties for land in the borough adjoining to their gardens. 39, 47, and 48, require objections in writing, thus rendering it questionable whether a printed notice will suffice, as the act in many places contradistinguishes printing from writing. It was held in Berkshire that the words " personally deliver," in this clause, meant that the notice should be delivered by the proper hands of the objector to the proper hands of the tenant. 40. The barrister should have immediate copies of the entire lists in boroughs as well as counties; at present he has none as to the former, and an abstract only as to the latter; an entire list would enable him to be better prepared for the revision, and more accurately to fix the periods for holding his courts. artificial ones, in the discretion of the returning officers. Two opposite opinions of first rate eminence have been given on this point. 71. No provision whatever made for several necessary expenses exclusive of the booths and clerks, and which it is hard should fall personally on the returning officer, or place him in controversy with the candidates and their agents. 76. The barrister, returning-officer, and overseers, should have the usual protection of one month's notice of action, with liberty to tender in amend. And, lastly, the important doubt whether a committee of the House of Commons may entertain and determine questions in appeal from the judgment of the barrister. THE GENERAL REGISTER BILL. PETITIONS OF THE PRESENT SESSION. THE following is the substance of numerous petitions which have been presented against this Bill in its present shape; and may assist those who are preparing to make further opposition. 50, 51, and 52. The barrister should have of his own authority power to expunge from the register in certain cases, a flagrant instance of the want of which occurred as to the proprietors of shares in the Kennett and Avon canal, That a General Public Register of Deeds, who each claimed to vote in fourteen different whether to be effected by deposit of the oriparishes, and were successfully objected to in ginal, or of a duplicate, copy, or memorial, is thirteen; but owing to an informality in the not only uncalled for by any adequate occasion service of the notice of the objection on the of necessity or usefulness, either to the land. overseer in the fourteenth, they were retained owner or the public at large; but on the conon the list, and voted. Revising barristers' trary would be productive of consequences duties imposed, with no corresponding powers highly mischievous to both: for whilst, on the for obtaining proper materials previous to one hand, all transactions relative to the conholding their courts, or for enforcing attend-veyance of lands, whether by sale, mortgage, ance or respect at them. No fund or period marriage settlement, or otherwise, would inassigned for payment of their fees and ex-variably be attended with delay, exposure, and penses. 55 and 56. Much ambiguity and circuity in the payments and repayments and allowances as between the county treasurer, clerk of the peace, and overseers, of the monies received for registration and printed copies of the lists. The compulsory shilling once for all in counties, and annual in boroughs, should be absolutely abolished in both. 58. Third question, as to same qualification differently construed according to the views of it by the elector, and many consequently disfranchised, should be altogether repealed, or a provision introduced, as in the Irish Act, that no person shall be precluded from voting on account of having sold, &c., if he shall have retained a sufficient amount of qualification, as the case may be. 59. No mode is provided for ascertaining the persons excluded from the register, so as to confine the privilege of tender to them. additional expense, with risk of the loss of deeds by their transmission to and from the place of registry, and with great danger to titles, from the omissions which would often occur under the new system; on the other hand, the evils to be guarded against have been greatly overrated, both as to frequency and magnitude, by some of the advocates of the measure; for it appears from the evidence of men of experience, given before a Select Committee of the late House of Commons, that such evils are of extremely rare occurrence. That it has been made to appear that the proposed law would operate most injuriously towards persons wanting to raise money on sudden emergencies, when the necessary and unavoidable delay under the new system would often frustrate the object of the party, and expose him to serious consequences. That the evils of the Register, with regard to small transactions, would be most grievous, and would in numerous cases amount to a ex-prohibition. It has been ascertained that more 68. In this clause, for the erection of booths for districts, it does not appear whether The General Register Bill.—Dissertations on Conveyancing. 119 than half of all the sales and mortgages that | DISSERTATIONS ON CONVEYANCING. take place are for sums at and under 3007. That ordinary skill and care, even under the present system, are sufficient to afford, in No. X. RE-ENTRY IN LEASES. transactions respecting real property, a ra- oN THE CONSTRUCTION OF PROVISOES FOR tional assurance of safety; and that the inconveniences which are at present experienced may be altogether, or in a great measure ob- Or the various clauses usually contained in viated, without the aid of so cumbrous and leases, none have given rise to more discusexpensive a remedy as a metropolitan, or even sion than those which would confer on the a local registry. That the concealment of set-lessor a right to determine the lease, in consetlement deeds, which has been held forth as quence of something on his tenant's part, wheone of the principal evils arising from the pre- ther of omission, or commission, prior to the sent system, may be prevented by an enact-period at which it would otherwise expire by lapse ment that a memorandum of settlement deeds shall be indorsed on one or more material title deeds; that a second mortgage should be protected from being defeated by a subsequent incumbrance, by an enactment, that a first mortgagee shall permit a memorandum of a second mortgage to be indorsed on his mortgage deeds, and on any one or more material title deeds; in short, that a general plan by indorsement might be devised which, although intrinsically a scheme of registration, would neither be public, nor official, nor metropolitan, nor provincial; neither dependent on Government regulations, nor on official agents; would call for no tax, nor take any man's title deeds out of his own custody; which, in fine, would adopt and include the substance of official registration, without its machinery, its forms, its impediments to free commerce in land, or its unavoidable and unnecessary publicity. That the well grounded confidence which arises, especially in the country, from local information, and from the known integrity of parties and their solicitors, renders unnecessary, in many cases, the troublesome and expensive precautions which the wary conveyancer at a distance, feelingly alive to the possibility of fraud, and ignorant of all extrinsic circumstances affecting the property and its title, deems it his duty to advise. of time. This perhaps cannot but be looked upon as a natural consequence, when we consider, that as on the one hand a lessor is often anxious to avail himself of such a privilege, so, on the other hand, the Courts are equally strict to regard the very letter of his power, and to uphold, as far as is consistent, the interest of the tenant. So uniformly indeed has this principle been acted upon, that it is not now too much to affirm, or rather it has long been established, that unless a clause of this nature is so accurately worded as precisely to meet the act or default in question, the lessor will in vain seek to take advantage of it. Notwithstanding, however, the many cases on this subject, which have been argued before the Courts, and have since been considered as fully settled, independently of the attention bestowed upon it by several excellent treatises, certain points, not before noticed, and probably never contemplated, have recently called for judicial determination. It may not therefore be useless to give a concise but connected. view of the more important cases lately determined on the subject. That in the construction of provisoes for re-entry, a general description is, for the most part, to be preferred to a particular one, is well shewn by the case of Doe d. Spencer v. Godwin, 4 M. & S. 265. Here the lessee covenanted that he would pay the rent, and That the feeling of the country has been un-would not assign without the leave of the les-" equivocally shewn by the hundreds of petitions against the measure in question which were sent up to the last and preceding Parliaments. It would argue but little knowledge of human nature, seriously to contend that because such petitions are not now extensively renewed, that therefore the public assent to the measure. Its promoters well know that the tendency of continually agitating a question is to bear down all opposition to it. That the public never had nor yet have any sympathy with the measure, appears by the fact, that no petitions in its favor have ever been presented, either to this or the two preceding Parliaments. sor, provided that if the rent were in arrear, or if all or any of the covenants "thereinafter" contained on his part should be broken, it should be lawful for the lessor to re-enter; and there were no covenants on the part of the former, after the proviso, but a covenant on the part of the latter for quiet enjoyment by the lessee on his paying the rent and perforining the covenants" thereinbefore" contained. It was nevertheless held, that the lessor could not re-enter for breach of the covenant not to assign, for the proviso was restrained by the word "thereinafter" to subsequent covenants; and though there were none such, yet the Court could not reject it. And though it might be contended, that the covenants respecting the enjoyment and the determination of the estate should be construed together, and the words "thereinafter" and "thereinbefore," as necessarily relating to the same things, and therefore used in the same sense, yet that would be making a substantial variation from the express terms of the deed. It is 120 Dissertations on Conveyancing.-Selections from Correspondence. almost needless to add, that if the proviso had was an ejectment brought for a forfeiture supsaid, that in case the rent should be in arrear, posed to have been incurred by the nonper"or if all or any of the covenants herein con-formance of a covenant to repair. The clause tained," &c. should be broken, the lessor reserved the right of re-entry, "if the lessee might re-enter, no such objection _could have should do, or cause to be done, any act, matter, prevailed. But, though the words are most or thing whatsoever, contrary to or in breach generally approved, a question may still arise of any one or more of the covenants and agreeas to their legal interpretation: thus, where ments." Lord Tenterden in delivering judgthe proviso was, that if the lessee, his ex- ment said, "Here the words, do, or cause to ecutors, administrators, or assigns, should com- be done, import an act, and there is nothing mit or permit any manner of waste in or upon in the other parts of the instrument from which the said demised premises to the value of 10s., we can collect that the intention of the parties and the same did not amend, or other satis- was, that it should apply to an omission to do faction for the same give within three months an act. We are therefore of opinion, that the after notice, the lessor might re-enter." The mere omission to repair, cannot be considered lessee pulled down some old buildings, and as doing, or causing to be done, any act within erected others of a different description. The the meaning of the clause for re-entry." lessor brought ejectment, and obtained a verdict, but no question was put to the jury as to the amount of waste committed. On motion for a new trial on that ground, the other Judges agreed with Bayley, J., that it should be made absolute, as the waste contemplated by the proviso, was waste producing an injury to the reversion, and it was possible that the value of the reversion might be increased by the alteration. Doe d. Darlington (Earl) v. Bond, 5 B. & C. 855. It may prima facie appear strange, that any doubt could have been entertained as to the meaning of the word "waste," or how it could be contended, that any thing should ever be considered as such, which was not in some sort prejudicial to the inheritance; but though it is to be hoped that the opinion expressed by the learned Judge will in future be acted upon, instances have occurred in which the Courts have held, that the fact of the tenant's having altered the nature of the thing demised, without reference to its being an improvement or not, was in itself sufficient to constitute waste. See Woodfall (new edit.) 463. In Doe d. Palk v. Marchetti, 1 B. & Ad. 715, the action was brought on a proviso giving a power of reentry if the tenant should, "by the space of thirty days next after notice thereof given, make default in performance of any or either of the clauses or agreements." The defendant erected a portico, and notice had been given him to replace the premises in their former state. It was held that no forfeiture was incurred, the clause not being applicable to a covenant by the tenant "not to allow alterations in the premises, or permit new buildings to be made upon them without permission." The chief grounds for this decision appeared to be, 1st, That the default in question was of such a nature that the parties could not have contemplated a notice not to make it; 2d, The language of the proviso seemed properly applicable to affirmative covenants, and therefore confined to such as were to be performed by the lessee, and which not being performed, he incurred a forfeiture. Upon the same principle it is a general rule, that covenants strictly negative, will not be extended to those which are affirmative, as is established by the recent case of Doe d. Sir W. Abdy v. Stevens, 3 B. & Ad. 299. This The last case I would notice is Doe d. Antrobus v. Jepson, 3 B. & Ad. 402. Here the lease contained a covenant by the lessee to use and consume upon the premises, all the hay, dung, &c., under a penalty of 5l., for every ton carried off, and also a clause for re-entry, which enumerated every covenant except the above, and then provided, that for the breach of any of the covenants, the lessor might re-enter. The defendant sold hay off the premises, and the forfeiture being insisted on by the plaintiff, it was objected on the part of the tenant, that the lease gave no power to the lessor to reenter, the proviso not extending to the covenant to consume the hay on the premises, another remedy being expressly provided, namely, the penalty of 51. Lord Tenterden however, said, "The fair meaning of the covenant not to remove any hay under a penalty of 5l. per ton, and of the subsequent proviso, is, that if the hay be so removed without payment of that sum, the right of re-entry shall accrue. The proviso extends to all covenants, and one covenant was broken by the defendant's removing the hay without paying the penalty." M. SELECTIONS FROM CORRESPON- PAYMENT OF DEBTS OUT OF REAL ESTATE, My Lord Wynford, who seems to delight in amending "Bills, wishes to introduce a clause into the Payment of Debts Bill, which will render it a nullity. What tradesman, though he may have trusted a nobleman or gentleman to the amount of thousands, has any written acknowledgment of the debt; or what attorney has any thing of the kind? I am myself an agent, and have a client or two who are men possessed of real estates; but have no acknowledgment of any debt except a few occasional notices in letters, which my Lord Wynford would hardly call acknowledgments. I hope the Lord Chancellor is by this time on his guard against the amendments of his noble and learned friend. P. R. A. Selections from Correspondence, No. XXVIII. HOURS OF ATTENDANCE OFFICES. IN SOLICITORS' LEASES. STAMP DUTY. To the Editor of the Legal Observer. 121 The Legal Observer being the medium through which the attention of the members In answer to the query put by "Aspiro," in of the profession is likely to be drawn, with No. CXL, on this subject (p. 22)-whether the regard to the customs observed in the offices ad valorem duty ought to depend on the penalty of solicitors, I beg to notice one which pre-prescribed whatever it may be, in connection vails in the most respectable part of the pro-with the rent actually reserved, or ought it to fession, namely, that of keeping the clerks be regulated by the yearly rent alone? I subuntil nine o'clock at night during the terms, mit that it can only be guided by the latter; and for a fortnight afterwards. I believe it for if we were to have it otherwise laid down, originated in consequence of the Rolls Court we should infer that the legislature anticipated sitting in the evening from six till ten, which every tenant would break his covenants; and has been long discontinued. I am sure every as the penalty not unfrequently varies accordliberal man will allow that from ten [nine] in ing as so much of the covenant is broken, it the morning until eight in the evening, are would be difficult then to ascertain the exact hours enough to transact business; and I am ad valorem, and different sums are imposed for quite sure after that time no profit results, but different covenants. Would " Aspiro's" inon the contrary, loss. It may not be out of genious draftsman take the amount of all these place to observe, that the hours in merchants' together and lay the duty on the whole? There counting houses are from ten till four, bank- is a very old maxim of our law, that it can never ing houses ten till five or six. presume a man intends to do wrong; and I would ask, what recompense would the tenant have, on the expiration of his term, who has faithfully performed all his covenants, for this additional expense? How encouraging to tenants to take leases! that they are to pay a duty on a penalty never in their ideas to incur, and whether incurred or no, it must be paid. If an overbearing landlord should insist on imposing as many penalties as he has covenants, where would this evil cease? I cannot find any cases that will bear the ingenious draftsman's suggestion, and I cannot suppose that it will ever be ruled to that effect. My object is only the health and comfort of the poor slaves of the profession, the preser vation of which must add to the luxury of their employers, if they will construe this appeal liberally. Temple. Yours, &c., A RETIRED PRACTITIONER. LIMITATION OF REAL ACTIONS. To the Editor of the Legal Observer. DELAYS IN THE EXCHEQUER. C. C. To the Editor of the Legal Observer. I have trespassed more on your time than it For many years I have been doomed to was my intention to have done, but I know much mortification and distress, in conse-you to possess a desire that every question in quence of not possessing pecuniary means to the Legal Observer should be met freely. Inner Temple. prove my just and legal claims upon family property left forty years ago. Having now obtained the assistance and advice of a friend, I have latterly made some progress towards the recovery of that property which has so long been withheld from me. But, Sir, no sooner did a ray of hope dawn upon my gloomy prospects, than I was informed by a professional gentleman, that a bill is now passing through Parliament which will prevent the recovery of that property; the bill limiting all recovery to twenty years from the period that the property was left. Now, Sir, will you be kind enough to inform me whether there is such a bill in progress, and the particular stage to which it has arrived? T. W. [The case stated by our correspondent, is one which, at present, will not come within the act: the operation of which is proposed to commence on the 1st of January, 1835. Actions brought in the mean time will be tried under the present law. The danger will be, that if the plaintiff should be defeated in his first proceedings and the time expire, he will come within the restrictions of the act. ED.] When there were only four Judges in the Exchequer, that Court was remarkable for the dispatch with which all applications to the Equity side of the Court, in any stage of a cause, were heard and decided; but now that an additional Judge has been appointed, alas, what a change for the worse has taken place! There was, I believe, only one day appoint ed for motions, further directions, and excep, tions to reports, during the present term, the whole of which was taken up by two motions, leaving no opportunity for a third motion, or for a single hearing on further directions, or exceptions to reports, within the term. A nearly similar result, though from another cause, took place last term, without the usual sittings between, and thus the poor suitors who have been anxiously waiting twelve months for the decision of their causes in a particular stage, have every chance of being compelled to wait twelve months more. 122 The Law relating to General Post Letters. We need not dwell on the means which This is the more vexing, as the remedy for who cannot obtain intelligence without comthe evil is so very plain and easy. Now that mitting a misdemeanor. there are four other Judges of the Court, who are fully competent to transact the Common Law business, why cannot the Chief Baron sit in Equity every day, instead of only three times a week, or perhaps ten days altogether during the term? Such an arrangement would enable him to get through the Equity business with case to himself, and advantage to the suitors. I say nothing of the delay in pronouncing decisions after causes have been heard. Mus. THE LAW RELATING TO GENERAL allowedly exist, of transmitting private letters under the franks of Officers of State and Members of Parliament; a practice formerly abused, but which, when limited to what may be called domestic correspondence, affords a great relief to the anxieties of friends and families. It is obvious, indeed, that the Post Office cannot be defrauded by sending a single letter of business, or even several letters, in a parcel, because the carriage of parcels is greater than that of the postage, and the alleged infringements on the rights of the Post Office, if altogether abstained from, would probably produce but little increase of revenue: those who wait for the tardy convenience of forwarding a WE stated last week the 7th section of the letter in "the next parcel," would never 5 G. 4. c. 20, prohibiting the sending or send it if the postage were to be paid. receiving letters otherwise than by post; We question whether the Post Master and the 8th section, which contains the ex- General would gain a thousand a year by ceptions to the enactment. We have since permitting his underlings to stop all the referred to the previous Post Office Acts, friendly "salutations and greetings" which namely, the 9 Anne, c. 10, and the 42 G. pass between the town and country gossips. 3. c. 81, and find that they confer no Those who have matters of any importance power (it would be extraordinary if they never hesitate to incur the expense of did,) to break open parcels, for the purpose postage; but there are thousands of inof ascertaining whether they contain any stances in which, small as the cost is, it thing prohibited. It may be defensible to would not be incurred, although there were search goods and merchandise, particularly no other mode of communication. The when imported from abroad; but to break Government would do well to consider open parcels sent from one part of the whether it is worth while, for the sake of kingdom to another, and to permit either an insignificant sum, to incur the odium superior or subordinate officers to delay the of exercising a very doubtful and inquisidelivery of parcels containing title deeds, torial power. As regards the members of or documents, or proceedings in Courts of the Profession, we believe it would save Justice, is too monstrous to be endured. much trouble if the rule were strictly enThe most serious consequences must inevi- forced, though it might deprive them of the tably ensue, if His Grace the Post Master gratification of occasionally accommodating General should permit his officers and the families and friends of their corresponagents to exercise their discretion in such matters. The people of this country must be taxed in some other way than by the inspection of their confidential letters and packets of business. dents. In addition to these remarks, we would briefly direct attention to the words of the act of Parliament. It will be observed, by the 8th section 5 G. 4. c. 20 (vide p. 111), The convenience and advantage of a Post that there is an exception in favor of letters Office establishment, and the skill and ac- which concern goods sent by a carrier, such curacy with which it is conducted, will be letters being delivered with the goods; and readily admitted; and we presume that the proviso extends to merchants' letters adequate remuneration is afforded for the delivered by the masters of ships or persons services which each individual performs; it employed by them. The clause then proappears also that the revenue is very con- ceeds to exempt "any commission or residerably increased, after the payment of turn thereof, affidavits, processes, or proevery expense: if, however, the cost and ceedings, or return thereof, issuing out of trouble of the establishment be not suffi- any Court." Now, though the words of the ciently paid for, let the amount of postage proviso do not strictly warrant the conbe increased; but let there be no encou-struction, the intention surely must have ragement to a wretched class of informers, been to except letters "which concern" |