The Property Lawyer, No. XX.-Review: Hughes on Wills. acknowledgment in writing, in the mean time (§ 40). No arrears of dower to be recovered for more than six years (§ 41). No arrears of rent or interest to be covered for more than six years (§ 42). Act to extend to the Spiritual Courts. (43). 263 the misdescription was so gross as to release the defendant from his contract. Parke, J. (after referring to the case of the Duke of Norfolk v. Worthy, 1 Camp 340) said, that he should direct the jury that, if the misre-description was a wilful and designed one, and had been inserted by any one employed to make the plan, or connected with the sale, that would be a fraud adopted by the vendors, and Act is not to extend to Scotland, nor to consequently would annul the bargain altogeadvowsons in Ireland (§ 45). ther, although the vendors themselves might We have now noticed the principal alter-But if the jury thought that the misdescription not have been aware of the misdescription. ations effected by the act; but we shall had originated in error, then, however gross probably, in some future number, enter the negligence of the vendors might be, he was more at large into some of its principal pro- of opinion that they were bound to find their verdict for the plaintiff. Supposing even that the mistake were so important as the defendant's counsel offered to prove it to be, still the defendant must abide the event of hav ing bought an estate without looking at it, and subject to such a condition as that now in question. And he was further of opinion, that the onus of proving the fraud lay on the defendant, the presumption of law being against fraud. On this expression of the learned Judge's opinion, the defendant agreed to a reference.-Wright v. Wilson, 1 Moo. & Rob. visions. THE PROPERTY LAWYER. MISDESCRIPTION ON SALE BY AUCTION. THE condition of sale, that any mistake in the description of the estate, &c. shall not annul the sale, &c., will only guard against unintentional errors. Thus, when the estate was described in the particulars as being about one mile from H., and it turned out that the estate was between three and four miles from that place, Lord Ellenborough put it to the jury whether the misdescription was wilful and fraudulent, and the jury found that it was. Duke of Norfolk v. Worthy, 1 Camp. 340. The same doctrine was acted on in the following case: Assumpsit to recover the amount of deposit, agreed to be paid by the defendant, as the purchaser of an estate sold by auction.-The defence was a misdescription of the estate in the particulars of sale. The particulars of sale referred to a map, as containing the description of an estate, and in that map a turnpike road was set out, immediately adjoining the premises; whereas it turned out there was no turnpikeroad within a quarter of a mile, and that what on the face of the map appeared as a turnpike road, was in fact, a mere footpath. There was no evidence on either side to show how the misdescription had originated. F. Pollock, for the plaintiff, relied on one of the conditions of sale, by which it was provided "that if any mistake be made in the description of the premises, or any other material error shall appear in the particulars of sale, such mistake or error shall not annul the sale, but a compensation or equivalent shall be given or taken as the case may require, such compensation or equivalent to be settled by two referees," &c. Wightman, for the defendant, insisted that 207. REVIEW. Practical Directions for taking Instructions for Drawing Wills, with an Appendix of Precedents. By William Hughes, Esq. of Gray's Inn, Barrister at Law. Clarke, 1833. THERE are several modes of composing law books, of which we need here only mention two. One is, to select a subject uninvestigated by others, and draw from the cases and statutes relating to it, rules which shall guide, or shall endeavour to guide, the profession in the matter discussed; or to invent a new plan for conveying legal information, practical or otherwise. The other mode is, for the author (if author he can be called,) to avail himself of the existing works on his subject, and of the labors of their authors, and arrange their information in a new form; acknowledging, or not acknowledging the obligation, as he may choose. We are afraid we must say that Mr. Hughes's book has been prepared on the latter plan. There are many works now before the profession, containing directions for preparing wills, and forms of wills; and we have been able to find but little new information in Directions," and still less novelty in the Precedents." The old rules are, however, stated intelligibly; and we shall give our readers a favorable opportunity of 264 Review: Hughes on Wills. judging of the work for themselves, in the following directions as to the execution of wills: the Statute of Frauds will be insufficient. In some instances, however, where it is impossible that the terms of the power can be strictly complied with, a Court of Equity will grant relief; hence, in the case of Bath and Montague, 3 Cha. Cas. 68, it was resolved, that if a man makes a conveyance, with a power of revocation, in the presence of four privy counsellors, and he is sent by the King to Jamaica, when the circumstance becomes impossible, equity will allow him to revoke it without such presence. "1. The testator should sign his name in the presence of all the witnesses, and he should also publish his will before them, or make use of some expressions to enable them to understand that the instrument he signs is his will; but it will of course be unnecessary that the witnesses should know any thing of the contents. If the will is of several sheets, it will be advisable that the testator should sign every "5. In the case of copyholds, it will always be sheet, and also that the witnesses should sub-advisable that they should be surrendered to scribe their names to it, which must effectually the use of the will; for although the statute of prevent any questions from being raised as to 55 G. 3. c..192, enables a person to devise whether the whole will was in the room at the copyholds without a surrender to the use of time of the execution. Sealing is not neces- the will, yet it must be remembered that this sary; but as it is now become the general prac- statute only supplies the omission of a surtice, it may be advisable to comply with it. render where such surrender would render the will effectual if actually made; but where any other formality is required, the statute will not give validity to such devise, unless such formalities are complied with. The statute in fact merely supplies a surrender, and nothing more. Thus in Hodson v. Merest, [9] Price 556, where by the customs of a manor, lands could not be transferred but by bargain and sale and admittance, nor devised, unless by a conveyance and declaring the uses of the will; on a suit by the daughters and heiresses of the devisee, claiming under the heir-at-law of the testator, who had been admitted, it was holden that the formalities had not been observed by the testator in conveying to the uses of the will, and that the copyholds did not pass by it. And in Doe d. Nethercote v. Bartle, 5 B. & Ad. 492, it was determined, that this statute did not dispense with a surrender required by a married woman, to enable her to devise copyhold lands, in making which she was to be examined by the steward, apart from her husband, as to her consent thereto; this being a surrender in substance intended to protect the acts of a married woman, which protection it was not the intention of the legislature to take away. The object of the statute was merely to prevent any inconvenience which might arise from a mere omission to surrender in the case of an adult legally capacitated. But where a separate examination is an essential part of the surrender, the legislature never intended to cure an omission in that important particular; such an extension of the statute would be pregnant with the most serious consequences. 2. Care must be taken that the witnesses subscribe in the presence of the testator; and they ought also to attest in the presence of each other; for in case it should be necessary to produce the will in evidence in a court of common law, the devisee need only produce one witness, provided that such witness can prove that all the requisites imposed by the Statute of Frauds have been complied with; that is, that the devisor signed his will, or that another person signed it in his presence, and by his express direction; and that the witness and two others subscribed in the presence of the devisor. The heir is certainly entitled to have all the witnesses examined; but the devisee is only bound to produce one, if that one can prove all the requisites; if, therefore, the heir wishes the other witnesses to be examined, he must produce them. But where the witnesses have attested separately, as one only can prove his own act, they ought all to be called. And this will be requisite in all cases where the will is to be proved in the Court of Chancery, or in issues directed from that Court; which being a proceeding immediately under the direction, and for informing the conscience of the Court, is governed by equitable principles; and it is a fixed rule of equity, that all the witnesses, if living, must be examined to prove a will of lands." [This is not quite correct, as exceptions are to be made. See Tatham v. Wright, &c.] "3. The clause of attestation should always be inserted; and if the witnesses have attested in the presence of each other, it should be so stated. 4. When the will is made in pursuance of a power of appointment, the terms of the power must be strictly complied with, as the creator of the power may impose what terms he thinks proper; hence, although sealing is not requisite in order to give validity to a will, yet if by the terms of the power the will is directed to be under seal, a mere signature will be insufficient; (Dormer v. Thurland, 2 P. Wms. 506;) and if by the terms of the power, it is required that the will should be attested by four witnesses, or by witnesses of a certain denomination, a will executed in pursuance of "A surrender, therefore, if possible, should never be omitted. It will be proper also to remark, that there is not eventually any saving in point of expense by omitting to surrender, and trusting to the act; the second section having declared that the same fees and stamps shall be payable on a surrender supplied by the act, as on a surrender actually made. But as, in the case of an omission to surrender, such expenses must be borne by the devisees, that circumstance may have considerable weight with many testators, who may probably rather choose to risk the omission of a surrender, Attorneys practising as Notaries. than to incur the expenses which such surrender may occasion. 265 service. In 1801, a statute was passed, by which a service of seven years to a notary was 6. At the time of the execution, it may rendered necessary to entitle any one to adbe proper to inquire whether any of the per-mission as a notary. From the preamble to sons who are intended to be witnesses have any thing bequeathed to them by the will. 6 7. The witnesses should be persons of respectable character, in order to prevent any suspicion of fraud; yet at the same time it may he proper to remark, that although it was at one time considered that the words credible witnesses' meant something more than competent witnesses, that doctrine has been long since overruled; so that it is now clearly settled, that any person who is a competent witness at a trial at law, will be a sufficient witness to the attestation of a will; hence, such persons as have the use of their reason, and such a religious belief as to feel the obligation of an oath, who have not been convicted of any infamous crime, and are not influenced by interest, may be witnesses to a will. And it may be proper also to remark, that although the will be charged with the payment of debts, yet a creditor, although of course he must be interested, may be a witness to such will. Stat. 25 G. 2. c. 6. § 2. "In wills, either of real or personal estate, no stamps are required to be affixed to them in order to give them validity; but by several acts of parliament, wills of personal estate are liable to the probate and legacy duty, which will also attach on real estate when it is directed to be sold and converted into personalty. On this account it is generally advisable, when lands are intended to be charged only in aid of the personal estate, and the whole real estate is not intended to be converted into personalty, merely to charge such real estate to such payments, and not devise it directly in trust to be sold, in which case such part only as is actually converted, will be liable to such payment. And it may also be advisable to remark, that it is not necessary that a stamp should be affixed to an inventory, although some overcareful persons have thought proper to put the parties to such an unnecessary expense."Pages 96 to 102. ATTORNEYS PRACTISING AS NOTARIES. this statute it is apparent, that it was not the object of the legislature to exclude men of legal skill and good character, but to prevent persons from becoming notaries, whose educa tion had not qualified them for the preparation of such legal documents as notaries in general are called upon to prepare. Hence it is clear, that the act was intended for the protection of the public-not to create a monopoly to their inconvenience. It has, however, failed of its intended effect, for men of character and competency have been excluded, whilst bankers' clerks, law-stationers, and ship-brokers have obtained admission. At the present time, there are many large towns and extensive districts in England, in which few, if any notaries are to be found, and hence great inconvenience has been occasioned to the public, and particularly to gentlemen possessed of French or American stock, or other foreign property. By giving facility to the admission, as notaries, of respectable country solicitors, this inconvenience would be most effectually obviated. The profits arising from notarial business out of London are very trivial; but it is a convenience to a provincial attorney to possess a notary's faculty, because it keeps his business compact; and it is an accommodation to merchants, as it saves them the trouble of employing different law-men; and on account of this mutual convenience, it was usual before the passing of the statute of 41 Geo. 3. for provincial attorneys to be admitted notaries. From a similar principle of convenience to the public, provincial attorneys and solicitors are authorized as Masters Extraordinary in Chancery and Commissioners of the Superior Courts to take affidavits, officers greatly resembling that of the notary. - Acts strictly notarial do not require skill, but accuracy; and if faith and confidence are to be reposed in formalities, it is essential that they should be attested by men of unquestionable character and veracity. And whilst a person of legal attainments is now disabled from performing these mere ceremonies, the notary may prepare instruments of the greatest importance, whatever his preparatory study may have been. By the 1 & 2 G. 4, c. 48, any gentleman who has taken a bachelor's degree at a university WE readily afford admission to the following is entitled to admission as an attorney on a serarguments for the Bill now before Parliament vice of three years only, and an attorney's clerk is enabled to place himself during the last year It appears that on the suggestion of Mr. Tooke of his clerkship in the chambers of a practising in the Select Committee, the limitation as to barrister or conveyancer. While these benefiLondon has been reduced from twenty to ten cial relaxations have been made in the strictness of the service required to qualify an indimiles, and the restriction in the country alto-vidual for the far more responsible and difficult gether removed. duties of an attorney, the full period of seven years is still exacted to entitle a person to adPrevious to the year 1801, any person was mission as a notary. The result is most imadmitted a notary on production of testimo-portant as affecting the education of those who nials of good character, without any initiatory may be desirous of acting as notaries; for the 266 Imprisonment for Debt.-New Bills in Parliament.—Reform in Chancery Practice. unreasonable length of the service abridges, on the one hand, the period of early instruction by rendering it necessary to remove the NEW BILLS IN PARLIAMENT. individual prematurely from school, and, on A BILL TO AMEND AN ACT OF THE SECOND YEAR OF His present MAJESTY, FOR THE the other hand, deprives him at the expiration of his clerkship of the benefits to be derived from the statutory provisions before alluded to. Under such discouragements, for the continuance of which no satisfactory cause can be shewn, the practice of a notary demands sa- RECITING that by an act passed in the second crifices which many who would be in other re- year of his Majesty's reign, intituled, “An spects amply qualified, are unwilling or unable Act for Uniformity of Process in Personal to make. Nor is it possible to suggest any Actions in His Majesty's Courts of Law at reason why the spirit of the liberal policy exWestminster," it is enacted, that the process hibited in the recent regulations respecting the in certain actions therein mentioned, shall be profession of an attorney should not be extended according to the form contained in a schedule to this branch of business. For it cannot be to the said act annexed, and shall be called a doubted, that the time which the statute of 41 writ of summons, and that such writ shall be Geo. 3. requires to entitle a person to admis-issued by the officer of the said Courts ression as a notary would be much better employed in the obtaining of a degree at college, or in the chambers of a conveyancer or pleader; and it is equally certain that the proposed alteration of the law, by enabling men thus educated to obtain a notary's faculty, would tend to improve greatly the character and respectability of the class of provincial notaries. IMPRISONMENT FOR DEBT. To the Editor of the Legal Observer. Sir, pectively, by whom process serviceable in the county therein mentioned hath been heretofore issued from such Court: And that since the commencement of the said act, the writ of summons, and other writs mentioned therein, issued into the county of Middlesex, have been issued, signed and sealed by the signer of the bills of Middlesex, in the King's Bench, whilst such writs into all other counties and cities have been issued and signed by a different officer, and have been sealed by the sealer of the writs under and by virtue of an order of the Judges of the said Court: And that it is expedient that all writs issued into the county of Middlesex, from the Court of King's Bench, should be signed and scaled by the same persons, and in like manner as all other writs issued from the said Court into other counties and cities; THE arguments on both sides in this question resolve themselves into the following considerations: first, whether the object of imprisonment for debt be, to recover the debt; or, second, to punish the debtor. If the latter be the that so much of the said act passed in the It is proposed therefore to be enacted, object, the system is a total failure for the cre- second year of his Majesty's reign as provides ditor, and the county is the sufferer. Witness that the writ of summons therein mentioned the enormous expenses incurred annually for shall be issued by the officer of the said Courts the support of the debtors in Whitecross Street respectively, by whom process serviceable in prison only, including the plaintiff's costs: the county therein mentioned hath been herewhy, the amount, sir, is prodigious. If the tofore issued from such Court, shall be and former be the object, the system is still a fail- the same is hereby repealed; and that from ure, as must be admitted on all sides. If my and after the passing of this act, all writs of position be admitted, and you will open your summons, distringas, capias and detainerissued pages to the consideration of the question, how a system of law can be established to recover debts without imprisoning the debtor, I will contribute my mite, and will show that no imprisonment should take place until a clear case of fraud is proved-that men should not, in justice, by any conventional law, be punished with imprisonment for their misfortunes, but for fraud only. What should be deemed a fraud, and what not, requires argument; but correct principles may be easily deduced, if the subject is fairly considered. July 27, 1833. Yours respectfully, AMBULATOR. a Our pages are always open, within reasonable limits, to the discussion of this and all other legal subjects.-Ev. into the county of Middlesex, from the Court of King's Bench, shall be signed, sealed and issued, and the fees thereon shall be taken and accounted for by the same person or persons, and in like manner as all other writs of summons, distringas, capias or detainer issued from the said Court of King's Bench, under and by virtue of the said recited act; any law, custoin or usage to the contrary notwithstanding. REFORM IN CHANCERY PRACTICE. OFFICE COPIES AND SOLICITORS' CHARges. We have received several communications on the subject of the 26th clause in the Reform in Chancery Practice.-Recent Statutes. 267 Lord Chancellor's last Law Reform Bill, were increased to a satisfactory amount, it' called "the Chancery Offices Abolishing might be expected that the solicitors in Bill," of which the following is the sub-general would still decline accepting it, if stance: The clause in question will be found at p. 233 of our last Number, and provides that solicitors shall deliver copies of all pleadings, &c. at 2d. per folio, and be liable, at the suit of a common informer, to forfeit 20s. for every folio overcharged, and be struck off the roll of all the Courts. There can be no doubt that the delivery of copies of the pleadings by the solicitors would expedite the proceedings in Chancery suits, by saving the time occupied in obtaining office copies after the pleadings are filed. It would also be a personal convenience to practitioners. But the terms on which the business is to be done appear highly objectionable. The existing charge is 10d. per folio: of this, we understand, 6d. belongs to the Sinecure Six Clerks" (subject to a small allowance to the Sworn Clerk, for taking the risk of bad debts), and the remaining 4d. is retained by the Sworn Clerk, as the officer who performs the actual duty. This fee of 4d. per folio appears to be a reasonable and customary one. It is the same which is allowed for ingrossments in the Common Law Courts, except that there the folio is 72, in stead of 80 words. Now, if the proposed alteration should take place, the solicitor will be responsible for any inaccuracy in the copies required to be delivered, and therefore it will be necessary that such copies should be carefully examined by two competent persons; whilst on important matters, or where the strictest verbal accuracy is requisite, it will evidently be prudent to have a double examination; and there must also be a careful calculation of the number of folios, in order to frustrate any attempt by malicious persons to prosecute for the penalties. clogged with the forfeitures stated in the Bill. They already labor under several restrictions imposed by acts of parliament and rules of court, in regard to the delivery of signed bills before commencing an action, which allows of a previous taxation, and they are subjected to the costs of taxation if more than a sixth be deducted. These and other regulations are more severe, and the remedy for misconduct obtained in a more summary manner, than in any other profession or calling; and it might consequently be anticipated that this further infliction would be resented as it deserved ;, for the proposition certainly manifests a foregone conclusion, that nothing short of the fear of heavy fines and striking off the roll would keep them within the bounds of honesty. We understand accordingly, that the solicitors in general have declined to accept an increase in their emoluments (if increase it be) on such terms; for they consider any such conditions would tend to degrade them in public estimation, and be calculated to prevent other respectable per sons from qualifying themselves to practise. We must add also, that we think such a proposition wholly uncalled for, inasmuch as every necessary protection of the suitor is afforded by the provisions already made in the statutes and rules of court relating to attorneys and solicitors. We have thus inserted the result of many remarks which have reached us on this subject; and may add, that we understand, in consequence of the strong remonstrance made by several eminent practitioners, the clause will be abandoned. The Bill, we are informed, cannot proceed to maturity during the present session, but will be brought forward without delay in the next. We hope, however, there will It is manifest, therefore, that the proposed yet be time to pass the Chancery Regulation allowance of 2d. per folio is scarcely suffi- Bill (which contains many useful provicient to reimburse the solicitor for his clerk's sions), subject to such modifications as may time in transcribing, examining, and reck- be properly suggested in the Select Comoning the folios; and as including the res-mittee now engaged in its examination. ponsibility for any default, the interest of money advanced, and the risk of ultimate loss, it is so paltry and contemptible that we do not wonder the "boon" has been rejected by all the persons with whom we have had an opportunity to communicate. In the next place, if the proposed fee a According to another informant, the Six Clerk's fee is 4d. only, and that of the Sworn Clerk 6d. RECENT STATUTES. METROPOLITAN POLICE OFFICES. THIS act passed on the 18th June, 1833, and |