of two or more credible witnesses twelve calen-delivered in the presence of two or more credar months at least before the death of such dible witnesses, or by reason of such deed or donor or grantor, and were enrolled in his Ma- assurance not having been enrolled in her Majesty's High Court of Chancery within six calendar months next after the execution thereof, and unless the same were made to take effect in possession for the charitable use intended immediately from the making thereof, and were without any power of revocation. By the 9th Geo. 4, c. 85, it was enacted, that where any lands, tenements, or hereditaments, or any estate or interest therein, had been purchased for a full and valuable consideration, in trust or for the benefit of any charitable uses whatsoever, and such full and valuable consideration had been actually paid for the same, every deed or other assurance then already made for the purpose of conveying or assuring such lands, &c., in trust or for the benefit of such charitable uses (if made to take effect in possession for the charitable use intended immediately from the making thereof, and without any power of revocation, &c., whatsoever for the benefit of the grantor, or of any person or persons claiming under him), should be as good and valid and of the same effect, both for establishing derivative titles and in all other respects, as if the several formalities by the 9 Geo. 2, c. 36, had been duly observed. Doubts have arisen whether it is possible to make any good or valid assurance for charitable uses of any hereditaments of copyhold or customary tenure: and it is expedient to make provision for further remedying defects and obviating difficulties and as to enrolment, in regard to deeds and assurances of hereditaments conveyed for charitable uses in manner hereinafter provided: it is therefore proposed to enact as follows: 1. No deed or assurance heretofore made or hereafter to be made for any charitable uses whatsoever of any hereditaments of any tenure whatsoever, or of any estate or interest therein, upon a full and valuable consideration actually paid at or before the making or perfecting such deed or assurance, or reserved by way of rent, rentcharge, or other annual payment, or partly paid at or before the making or perfecting such deed or assurance, and partly reserved as aforesaid, without fraud or collusion, shall be deemed to be null and void within the meaning of the first recited Act, if such deed or assurance has been at any time prior to the passing of this Act, or shall be within six calendar months next after the passing of this Act, or shall be within six calendar months next after the making or perfecting such deed or assurance, enrolled in her Majesty's High Court of Chancery. jesty's High Court of Chancery within six calendar months next after the execution thereof, or by reason of such deed or assurance, or any deed forming part of the same transaction, containing any grant or reservation of any peppercorn or other nominal rent, mines or minerals, or easement, or any covenants as to the position or description of buildings, the formation or repair of streets or roads, drainage or nuisances, or any covenants of the like nature, providing for the use and enjoyment as well of the hereditaments comprised in such deed or assurance as of any other adjacent or neighbouring hereditaments of the donor or grantor, or of any person or persons claiming under him, not comprised in such deed or assurance, or any right of entry on nonpayment of any such rent or breach of any such covenant, or any covenant indemnifying the donor or grantor against any prior incumbrance, or any stipulations of the like nature, for the benefit of the donor or grantor, or of any person or persons claiming under him, or in the case of any such assurance of hereditaments of copyhold or customary tenure, or of any estate or interest therein, by reason of the same not having been made by deed indented, if such deed or assurance has been at any time prior to the passing of this Act or shall be within six calendar months next after the passing of this Act enrolled in her Majesty's High Court of Chancery. 3. No deed or assurance hereafter to be made for any charitable uses whatsoever of any hereditaments of any tenure whatsoever, or of any estate or interest therein, not upon such full and valuable consideration as in the first section of this Act is mentioned, shall be deemed to be null and void within the meaning of the first-recited Act by reason of such deed or assurance, or any deed forming part of the same transaction, containing any such grant, reservation, covenants, right of entry, or stipulations for the benefit of the donor or grantor, or of any person or persons claiming under him, as in the second section of this Act is mentioned, or, in the case of any such assurance of hereditaments of copyhold or customary tenure, or of any estate or interest therein, by reason of the same not being made by deed indented, if such deed or assurance shall within six calendar monthe after the making or perfecting such deed or assurance be enrolled in her Majesty's High Court of Chancery. 4. In all cases where the charitable uses of any deed or assurance heretofore made for 2. No deed or assurance heretofore made conveyance of any hereditaments for any chafor any charitable uses whatsoever of any he- ritable uses, and not enrolled in her Majesty's reditaments of any tenure whatsoever, or of High Court of Chancery prior to the passing any estate or interest therein, not upon such of this Act, have been declared by any other full and valuable consideration as in the first deed or instrument, it shall be deemed suffisection of this Act is mentioned, shall be cient, for all intents and purposes whatsoever, deemed to be null and void within the mean- if such deed or instrument declaring the chaing of the first-recited Act by reason of such ritable uses has prior to the passing of this Act deed or assurance not having been sealed and been so enrolled as last aforesaid; but if 66 Law of Mortmain.-Review: Kerr's Action at Law. neither such deed or assurance, nor the deed or instrument declaring the uses thereof, has been so enrolled as last aforesaid, then it shall not be necessary to enrol such deed or assurance, but every such deed or assurance shall be absolutely and to all intents and purposes null and void unless the deed or instrument declaring the charitable uses thereof shall within six calendar months next after the passing of this Act be enrolled in her Majesty's High Court of Chancery. receive, and take a sum corresponding to the fine and heriot (if any) which would have been payable by law upon the death or alienation of the tenant or tenants thereof, and such payments shall be in full of all fines and heriots (if any) payable to the lord or lady of the manor of which such hereditaments are holden while the same shall be devoted to charitable uses, and the lord or lady of such manor shall have all such powers for the recovery of the sums hereby made payable as such lord or lady 5. In all cases where the charitable uses of could have had in the event of the tenant or any deed or assurance hereafter to be made for tenants of such hereditaments having died, or conveyance of any hereditaments for charitable having alienated the same, in reference to the uses shall be declared by any other deed or fines and heriots (if any) heretofore payable; instrument, it shall not be necessary to enrol provided also, that nothing in this Act consuch deed or assurance, but every such deed tained shall be construed to extend any of the or assurance shall be absolutely and to all in-provisions of the last herein before recited Act tents and purposes null and void, unless the to any case whatsoever further or otherwise deed or instrument declaring the charitable than is by this Act expressly provided. uses thereof shall, within six calendar months next after the making or perfecting of such deed or assurance conveying the property to such charitable uses, be enrolled in her Majesty's High Court of Chancery. 6. That the provisions in this Act for remedying defects in titles shall extend and apply, so far as the same shall be applicable, to subsequent deeds or assurances only. NOTICES OF NEW BOOKS. An Action at Law: being an Outline of the Jurisdiction of the Superior Courts of Common Law, with an Elementary View of the Proceedings in Personal Actions and in Ejectment. The Second Edition. By ROBERT MALCOLM Kerr, Barrister-at-Law. London: Bond, 1855, pp. 378. 7. Nothing in this Act contained shall extend to give effect to any deed or assurance heretofore made so far as such deed or assurance has already been avoided by any suit at law or in equity or by any other legal or equitable means THE utility of this treatise is shown by whatsoever, or to affect or prejudice any suit its early arrival at a second edition. It at law or in equity actually commenced for avoiding any such deed or assurance, or for comprises-1st. An Outline of the Constidefeating the charitable uses in trust or for the tution of the Superior Courts of Common benefit of which such deed or assurance has Law. 2nd. An Analysis of the matters which come within their cognizance. 3rd. The various proceedings 'in Personal Actions and in Ejectment. been made. 8. That whenever any hereditaments of any tenure whatsoever, or any estate or interest therein, have or has been or hereafter shall be conveyed or assured for any charitable uses whatsoever, to or in favour of any trustees or The Mr. Kerr has pursued the logical arrangement of Sir William Blackstone in work is peculiarly adapted to the legal stuhis volume on "Private Injuries." dent in both branches of the Profession. Looking at the wide field which the student is expected to traverse in preparing for the ordeal of examination, it is well that concise, clear, and accurate guides, like the present outline, are supplied for his assistance. trustee for such charitable uses, the original deed or assurance shall vest the hereditaments, estate, or interest thereby conveyed or assured, not only in the original trustees or trustee, but also in their or his successors in office for the time being duly appointed, and the deed, document, or order of Court by which such successors in office shall be appointed may be given and shall be received in evidence in all The introduction to the volume comCourts and proceedings, and shall be evidence of the truth of the several matters and things prises-1. Redress by Act of the Parties. therein stated: Provided always, that where 2. Redress by Operation of Law. 3. Resuch hereditaments shall be of copyhold or dress by Suit in Courts. customary tenure, and liable to the payment of any fine, with or without a heriot, on the death or alienation of the tenant or tenants thereof, it shall be lawful for the lord or lady of the manor of which such hereditaments shall be holden, on the next appointment of a new trustee or trustees thereof, and at the expiration of every period of 40 years so long as such hereditaments or any estate or interest therein shall be devoted to charitable uses to The First Part is devoted to-1. The Superior Courts of Common Law. 2. The Appellate. 3. The Auxiliary Tribunals. The Second Part contains-1. Injuries cognisable in Courts of Common Law. 2. Injuries that affect the Rights of Persons. 3. Injuries that affect the Right to Real Property. 4. Injuries that affect the Right to Personal Property. Review: Kerr's Action at Law.-Moot Points of Practice. 67 before a jury or one of the Masters, and such proof shall be a condition precedent to his obtaining judgment." And it will be observed, according to the same section, "the time for appearance shall be regulated by the distance from England of the place where the defendant is residing." The Third Part treats of-1. The Juris- Provided always, that the plaintiff is required diction of the Superior Courts of Common to prove the amount of debt or damage either Law. 2. The Sittings and Proceedings of the Court. 3. Process, Arrest, Forms of Action, &c. 4. The Writ of Summons. 5. Service of the Writ. 6. Judgment by Default. 7. Appearance. 8. The Pleadings. 9. Incidental Proceedings. 10. Demurrer. 11. Trial. 12. Proceedings after Trial. 13. Judgment. 14. Proceedings after Judgment. 15. Execution. 16. Writs of Execution. The diligent articled clerk who makes himself master of this elementary and practical volume, may reasonably calculate on passing in the Common Law department of the examination. MOOT POINTS OF PRACTICE. To the Editor of the Legal Observer. SIR,-In the case of Hesketh v. Fleming (Legal Observer, vol. 50, p. 39), I find an order to proceed was discharged. The reasons stated in the report seem to me entirely unsatisfactory. My impression is, that an order to proceed cannot be set aside, although no doubt the proceeding taken in pursuance of the order, as well as all subsequent proceedings, may. In Hesketh v. Fleming, therefore, the Judge on granting the order, having regard to the time allowed for the defendant to appear, directed the plaintiff to be at liberty to proceed, days from the service thereof, making (with unless the defendant appeared within seven eight days allowed by the writ) at least 15 days; whereas, in an ordinary case the order to proceed directs, "that the plaintiff be at liberty to proceed as if personal service had been effected-execution not to issue until after the expiration of eight days from service of notice of application for order." But it is not strictly correct to say the time to appear is left to the discretion of the Judge, as the plaintiff is actually the party to exercise the discretion, the Judge is only to have regard to the time being reasonable. The operation of the Judge is ex post facto only pro tanto. of sections, it might be correct to say that the Upon the hypothesis of the transmutation defendant in the above case had a right to set By the 17th section of the Common Law out proof, before a jury or one of the Masters, aside the judgment, if it had been signed withProcedure Act, 1852, it is enacted, "that it of the amount of the debt or damage, but this shall be lawful for the plaintiff to apply from is the utmost the defendant could (as it aptime to time on affidavit to the Court or a pears to me) have had a right to ask-the order Judge, and in case it shall appear to the Court to proceed remains intact without being imor Judge that the writ has come to defendant's pugned.-Possibly there may be some inacknowledge, or that he wilfully evades service curacy in the report, but as the point is one of and has not appeared, it shall be lawful for the importance, I trust you will excuse my drawCourt or a Judge to order that the plaintiff being attention to the peculiarity of the case. at liberty to proceed as if personal service had been effected, subject to such conditions as to such Court or Judge may seem fit." Then suppose, as in the case cited above, the defendant make an affidavit that he was out of the A. v. B. On a judgment, dated May 19, 1849. of Com. Law Proced. 1854, Query.-Can A. renew the ca. sa., April 22, 1852, ss. 124 & 125. 1853, ss. 128 & 129. must be obtained by summons, or rule nisi or Should such revival be by suggestion, which writ of error? luded to in the 129th section of the Com. Law What is meant by the present practice alProcedure Act, 1852 ? jurisdiction when the writ issued, and therefore the writ should have been No. 2, Schedule A., instead of No. 1, Schedule A. The 21st section of the Common Law Procedure Act, 1852, would cure this defect, and the position of the defendant would simply be changed by contending that the order, instead of being made under section 17 (as it probably was), was made under section 18 (which it probably was not). Now, section 18 applies only to cases where the defendant is out of the jurisdiction, and enacts, "that it shall be lawful for the Court or a Judge, on being satisfied by affidavit as to cause of action, and that writ came to information on the above subject, I think the If any of your Correspondents can furnish defendant's knowledge, or that he is living out Profession generally will be glad to receive it; of the jurisdiction to delay or defeat his credi- I for one most certainly shall, and shall feel tors, to direct from time to time "that the obliged by their courtesy as well as yours, in plaintiff be at liberty to proceed, subject to being the medium of communicating useful such conditions as to such Court or Judge points of practice, which a solicitor would may seem fit, having regard to the time allowed hardly be justified in going to his pleader for. for the defendant to appear being reasonable, and to the other circumstances of the case. MERLIN. Denman, Thomas William, 6, Thanet Place, Hooper, Thomas James, Warwick Chambers, Peace, Maskell, William, Wigan Rising, William Henry, 9, Burton St., Eaton Square; and Rotherham Williams, Edward Withers, 27, Albert Street, To whom Articled, Assigned, &c. R. R. Bayley, Basinghall Street Regent's Park; Stanhope Street; and Truro P. B. Smith, Truro RENEWED NOTICES. For the last Day of Trinity Term, 1855, of Persons who gave Notice of Admission for Easter Term, 1855, (pursuant to the Rule of Court of Hilary Term, 1853.) Barker, Thomas John, 10, Percy Crescent, Pentonville; Albany St.; and Blandford Place Cawley, John, 16, Clifford's Inn Dawson Peter Henry, 25, King's Sq., Goswell Ford, Gerard, 8, Lincoln's Inn Fields Gregory Charles, Hampstead; and Eyam W. W. Blake, Castle Northwich |