are given to British consuls general and consuls to administer oaths and do notarial acts


a Course of Lectures delivered at the Law Institution. By John William Smith, Esq., late of the Inner Temple, Barrister-at-Law. With Notes and Additions by Frederic Philip Maude, Esq., of the Inner Temple, Barrister-at-Law. London: W. Maxwell, 1855, pp. 358.

in the foreign places to which they are ap- The Law of Landlord and Tenant; being pointed, and it is expedient that the like powers should be given to ambassadors and other diplomatic agents and to vice-consuls and consular agents abroad. It is therefore proposed to enact, that it shall be lawful for every British ambassador, envoy, minister, chargé d'affaires, or secretary of embassy or of legation exercising his functions in any foreign country, and for every British vice-consul, acting consul, pro-consul, or consular agent ANY work from the pen of the late Mr. (as well as every consul general or consul) John William Smith will be welcomed by exercising his functions in any foreign place, the Profession in all its branches. whenever he shall be thereto required, and whenever he shall see necessary, to administer in such foreign country or place any oath or to take any affidavit or affirmation from any person whomsoever, and also to do and perform in such foreign country or place all and every notarial acts or act which any notary public could or might be required and is by law empowered to do within the United Kingdom of Great Britain and Ireland; and every and 1842.


subject now selected, that of the Law of
Landlord and Tenant, is one of very gene-
ral interest to almost every practitioner,
and Mr. Smith has executed his task with
great learning, accuracy, discrimination, and
The volume comprises a
course of lectures delivered by Mr. Smith,
at the Law Institution, in the years 1841


such oath, affidavit, or affirmation, and every They are printed in the state they were such notarial act, administered, sworn, affirm-left by the learned author; and the authoed, had, or done by or before such ambassador, rities he cited are given in the text. envoy, minister, chargé d'affaires, secretary of embassy or of legation, vice-consul, acting appears that the editor, Mr. Maude, is reconsul, pro-consul, or consular agent, shall be sponsible both for the foot notes and those as good, valid, and effectual, and shall be of portions of the text included within brackets. like force and effect, to all intents and pur- He has also added the headings to the poses, as if such oath, affidavit, or affirmation, lectures and marginal notes. or notarial act, respectively, had been administered, sworn, affirmed, had, or done before any justice of the peace or notary public in any part of the United Kingdom of Great Britain or Ireland, or before any other legal or competent authority of the like nature.


The new matter inserted in the notes comprise the alterations in the law since the lectures were delivered, and the practical application, in the later decisions, of the principles mentioned in the text. editor has also endeavoured, by the addition of many of the earlier cases, to make the work more useful, not only for students, but as a circuit companion.

2. Affidavits and affirmations so taken as aforesaid under the said Act of King George the Fourth or this Act shall and may be received, read, and made use of in and before any Court of Law or Equity or other judicature It was thought that the insertion of whatever in any part of the United Kingdom, these additions in the text would break up, and the Judges and officers thereof, in or in inconveniently, the broad general staterelation to any action, suit, cause, matter, or ments of the law of which it mainly con proceeding in or before any such Court or sists; and it was also felt to be desirable judicature in like manner and shall be of the that this new matter should be distinctly separated from the original work.

same force and effect as affidavits and affirma

tions taken in or before such Court or judicature, or by any person duly commissioned or authorised by such Court or judicature to take such affidavits or affirmations, and shall be filed and dealt with accordingly.

3. Documents to be admitted in evidence without proof of the seal or signature of the ambassador or other official person.

4. Persons swearing or affirming falsely guilty of perjury.

5. Persons forging seal or signature guilty of felony.

Mr. Smith commenced this valuable series of Lectures with the following remarks:

"There are few words so constantly in lawyers' mouths as the words, Landlord and Tenant; and yet, when we come to inquire what precise relation are they intended to express-there are few questions which one feels greater practical difficulty in answering; for, on the one hand, there is no doubt whatever that, in point of strict law, wherever we find a subject in possession of land, there the relation of tenancy is in existence between him and somebody or other, since, according to the immutable rule of English law, no subject can

Review: Smith's Law of Landlord and Tenant.


have what is called allodial property, that is, not a sixpence of rent, nor ask for any coveland held of nobody. Some one or other must nant on his part to perform any of the ordibe his superior lord, and, if no other person, nary duties of a tenant, and though he might then the Sovereign, of whom all the landed destroy my interest the next day if so minded. property in the realm in the possession of sub- But though, as I have said, he is my tenant in jects is thus ultimately held.' I say ultimately, strict law, this is not the sort of tenancy we because, put the case that there are 50 inter- mean when we use the words Landlord and mediate landlords, the last of them must him- Tenant. It is very difficult to express in terms self hold of some person, and that person must the precise idea which we attribute to those be the Sovereign, inasmuch as there is no one words; but I think that I am not far wrong in else capable of holding independently of any saying that, when we speak of Landlord and superior. There is great doubt among our Tenant, we have the notion in our minds of a legal antiquarians as to the precise period at tenancy limited in point of duration within which this system of tenures was adopted in some bounds not so extensive as to render the England; some contending that it owes its landlord's interest practically worthless, and origin entirely to the Norman Conquest, accompanied by some remunerating incidents others, that it existed in the Saxon times, and to the reversion, such as a rent, or at all events received certain modifications after the Con- a fine in lieu of one, and also by certain obliquest. But, be this as it may, it has now gations, such as covenants, or, where the tebeen for upwards of 800 years, at least, a settled and unchangeable principle of English law, that no person except the Sovereign can hold landed property without a superior lord, and, consequently, in the contemplation of strict law, the relation of Landlord and Tenant is as extensive as the ownership of landed property by subjects."

nancy is evidenced by some instrument not under seal, agreements, for the performance of the duties usually required from persons taking the description of property demised; and as these are the sort of tenancies which give rise to the great mass of practical questions involved in the law of Landlord and Tenant, it is to these that I intend almost exclusively to direct my remarks."

"In the very early ages, while the feudal

"I need not, however, tell you who must be all familiar with the use of those terms, that Of tenancies less than freehold, namely, when we speak of Landlord and Tenant, even among lawyers, we use those words in a much for years; at will; and by sufferance, the narrower sense than that which I have just Lecturer observes, the history is curiousdescribed. For instance, when we use the words Landlord and Tenant, we do not mean to express the species of relation which sub-system retained its original vigour, estates of a sists between the Sovereign and a subject; for instance, the Duke of Wellington, who holds his estates of her Majesty by the service of presenting yearly a banner in lieu of all other rents and services; nor do we, I think, ever intend to express the sort of relation that exists between the reversioner and the particular tenants under a settlement, where no rent is reserved, or any service rendered, although a tenancy doubtless exists between them; for instance, if I convey lands to 4. in tail, keep ing the reversion myself, there is no doubt that A. becomes my tenant, though I reserve

1 Co. Litt. 1 a, b, 65 a.

2 See Co. Litt. (by Hargrave and Butler) 64 a, note (1); 2 Black. Com. 48; and Reeve's Hist. of Eng. Law, vol. i. p. 8, where the authorities on both sides of this question are mentioned.

* Co. Litt. 65 a.; 2 Black. Com. 51.

This is one of the few remaining instances of a holding by petite serjeanty (per parvum servitium), which was one of the old tenures in capite. In this tenure a subject held land immediately from the Crown, rendering a bow, a sword, or the like. Litt. ss. 159, 160, 161. Grand serjeanty was of a similar character, but the services rendered were personal to the King; as, for instance, the bearing of his sword or his lance. Litt. ss. 153 to 158. By the 12 Car. 2, c. 24, these tenures were converted, in effect, into ordinary socage tenures,

There was then no such thing as an estate for less quality than freehold were unknown. years; the owner of the soil did indeed someshould enjoy the right of dwelling on and cultimes covenant with a particular person that he tivating a portion of land for a certain definite who occupied it a tenant at all. It was conperiod, but this did not constitute the person sidered as a mere agreement between him and the freeholder, conferring no estate, and creating no tenure. If the freeholder turned him out on the following day, he had no remedy by which he could recover the possession. He might, indeed, maintain an action for the breach of the agreement to allow him to occupy, but he was unable to recover the land, since the law did not recognise him as possessing any estate in it."

"The first step towards establishing him on his present footing was the invention of a particular form of the writ of covenant," in which he was made to demand his term, as well as damages for the injury done him in ousting him but as this was only a form of the action of

"See Bac. Ab. Leases.

"As to the early history of the action of ejectment, see Bracton bk. 4, fol. 220, cap. 36; Hale's Hist. Common Law, c. 8 p. 201 (6th Edit.); Bac. Ab. Leases; Reeve's Hist. of English Law, vol. i., p. 341; vol. iii., pp. 29, 390; vol. iv., p. 165; Adams on Eject. c. 1; Stephen on Plead. 12, 13.

covenant, and as he could only maintain that judgment that he should recover his term as action against the person who had covenanted well as damages. This was a singular stretch with him (for it was not till long afterwards of power on the part of the Courts, and one that covenants were held to bind the assignee on which probably no Court would venture at of the lessor), if it so happened that his lessor the present day. And what is most singular had aliened the estate, or had created a par- about it is, that we do not know even the ticular estate of freehold in it, he had no means precise period at which it took place, though it of wresting the possession from the alienee or is ascertained to have been some time between grantee of such particular estate, and con- 1455 and 1458; since, in the former year there sequently was left altogether to his action for is a reputed assertion by one of the Judges, damages. that damages only are recoverable in ejectment; and in the latter year, a reported assertion at the Bar, that the term likewise is recoverable.' Thus were tenants for years at last placed on the same level as freeholders, with regard to the security of their estates, and the facility of their remedy when dispos sessed. Indeed, with regard to the remedy, they had arrived at a better position than the freeholder, for we all know that the real actions which were formerly the remedies made use of by the freeholder, became almost entirely disused, and that of ejectment, which had been invented for the sole use of the owner of the chattel interest, substituted in their place."

"Thus matters stood until the reign of Henry 3, at which period Bracton, from whom we derive our knowledge of the progress of the law relative to this matter, informs us that it was determined to provide a full remedy for the grantee in such cases; and, for this purpose, a writ was invented entitled a writ of Quare ejecit infra terminum. This lay against the person actually in possession of the land, and called upon him to show cause why he had ousted the termor within his term, which, if he could not do, the termor had judgment to recover it, and might still bring an action of covenant against the lessor."

"But this writ, being levelled at the mischief done to tenants by means of alienations by their own lessors, was not so framed as to embrace the case of a tenant for years ousted, not by his own lessor, or any person claiming under him, but by the tortuous act of a mere stranger. In such cases, the tenant had no remedy but to apply to his lessor to bring a real action to recover back the seisin of the freehold from the trespasser, and then, the lessor having obtained the seisin, the tenant's right to have his term again attached, and in this circuitous manner it became vested in him. But, in the reign of Edward 3, a remedy was created for him in these cases, also, by the invention of the writ of Ejectione firma, the very writ by which actions of ejectment are now commenced. This writ, the first instance of which occurs in the 44th year of King Edward 3, did not, however, originally enable the termor to recover the term, but only damages against the trespasser. To recover the term itself he was obliged to resort to a Court of Equity, which, about this time, as Chief Baron Gilbert informs us at p. 2, of his Treatise, began to interfere for his protection. At last the Court of Law, however, gave him a complete remedy, not by the invention of any new writ, but by altering the judgment upon the old writ of ejectment, and giving

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2. Points relating to creation of tenancy : Who may be lessors; Who may be lessees; What may be leased.

3. The mode in which demises are effected; Requisites to all leases; Usual incidents; The premises; The recitals; The habendum. 4. The reddendum; The covenants.

5. Points relating to continuance of tenancy: Rights of landlord; As to payment of rent; Remedies for enforcing payment of rent; By action; By distress; What the landlord may distrain; Where the landlord may distrain.

6. When the landlord may distrain; How the landlord may distrain; What the landlord must do with the distress; Remedies of tenant for a wrongful distress.

7. Rights of landlord as to repairs and cultivation; Where no express agreement; Repairs, &c.; Where there is an express agreement; Cultivation; Remedies of landlord for non-repair; Rights of tenant against landlord. 8. Points relating to determination of the "When this Lecture was written, and be-tenancy; Ways in which tenancy may deterfore the Common Law Procedure Act, 1852 mine; By effluxion of time; By surrender;

7 "See Bracton, bk. 4, fol. 220, cap. 36.

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(15 & 16 Vict. c. 76), the action of ejectment
was supposed to be commenced by the origi-
nal writ which is mentioned above, although, in fol. 42.
fact, no writ was sued out, but the proceedings
were begun by the declaration. It is now
commenced by a writ in the form given by that
Act, which is issued like an ordinary writ of
summons. See ss. 168, 169, and Sched. A.,
No. 13.

1 "See Brooke, Ab. Part 2, Quare ejecit, fol. 167. The first entry of a judgment of recovery of the term is of the date of 1499. See Rast. Entr. 253 a; and the authorities collected in the note to Doe d. Poole v. Errington, 1 A. & E. 756."

Law of Attorneys and Solicitors.

By forfeiture; By notice to quit; Rights of entitled to the fees?
parties on determination of tenancy.

9. Emblements; Fixtures.

10. Points relating to a change of parties to the demise; Assignment; By act of parties; By act of law.



THE attorney for the plaintiff in an action deposited a writ of ca. sa. with the agent in London of the sheriff of Gloucester, but without giving any special instructions as to its execution. The officer of the sheriff, having executed the writ, sued the attorney for the sum of 17. 16s. for mileage and expenses, and on the trial before the under-sheriff of Gloucester he obtained a verdict.

On a rule nisi being obtained for a new trial, Martin, B., said "It is not unreasonable to hold the attorney liable, because he knows more about the matter than his client; and if he wishes to restrict his liability, he should allow the client himself to employ the bailiff." The rule was accordingly discharged. Brewer v. Jones, 10 Exch. 655.

The previous decisions bearing on this subject are the following:

1. To sheriff's officer or bailiff.-A sheriff's officer employed by an attorney to make arrests on mesne process, issued at the suit of his clients, may sue the attorney for the fees usually allowed for such arrests. v. Carpenter, Ryan & M. 314; 2 C. & P. 118 Townshend (Dec. 7, 1825).

2. A bailiff employed by an attorney to execute writs, may maintain an action against him for the fees usually paid on such occasions. Foster v. Blakelock, 5 B & C. 328; 8 D. & R. 48 (April 14, 1826).

3. A sheriff's officer may maintain an action against the attorney of the plaintiff in the original suit, for caption fees and conduct money, on proof of an employment by the attorney, and that it is the usual course of business for the attorney to be charged with and to pay such fees. Newton v. Chambers, 1 Dowl. & L. 869 (Hil. Term, 1844).

4. The attorney who engages the service of the bailiff, and not the client, is the party liable to the bailiff for the fees usually allowed on taxation for the execution of the process. Walbank v. Quarterman, 3 C. B. 94 (May 25, 1846).

5. Quere, whether a sheriff's officer can maintain an action for levy and caption fees against the attorney of the plaintiff, unless specially employed by him; and semble, whether it must not be brought by the sheriff as the party


Seal v. Hudson, 4 Dowl. & L. 760 (Easter Term, 1847).

ney to issue execution against a defendant, the 6. Where a bailiff is employed by an attorattorney, and not the client, is liable to the bailiff for his fees. Maile v. Mann, 2 Exch. R. 608 (July 13, 1848).

To sheriff-The sheriff cannot recover his charges for executing a fi. fa. by action against the attorney in the cause, unless there be special circumstances from which a jury may infer an actual undertaking by the attorney to Law J., N. S., Q. B., 102 (Nov. 21, 1846). pay. Maybery v. Mansfield, 9 Q. B. 754; 16

personally liable to a witness whom he sub-
To witness.-The attorney in a cause is not
pœnaes, without any express contract, to give
evidence in a cause, for his expenses of attend-

Dowl. 140 (Mich. T. 1837).
ance. Robins v. Bridge, 3 M. & W. 114; 6

the assignees of a bankrupt tenant undertook,
1. On undertaking.-Where the solicitors of
"as solicitors to the assignees," to pay the
landlord his rent, held that they were personally
liable. Burrell v. Jones, 3 B. & Ald. 47
(Nov. 6, 1819).

tions of an agreement, is liable on their non2. An attorney who personally undertakes in an action for the performance of the stipula performance.

surety, for his client was not bound by that He cannot be considered a arrangement. Iveson v. Conington, 1 B. & C. 160 (Jan. 28, 1823).

For business done at request of mortgagee's attorney.-Certain business was transacted by the attorney to a commission of bankrupt at premises belonging to the bankrupt, in referthe request of the attorney of the mortgagee of ence to a sale thereof. The jury found, on the question being left to them, that credit was given to the mortgagee's attorney, held that he was done it was known to be for the benefit of was liable, although at the time the business & C. 11; 3 D. & R. 195 (June 3, 1823). the mortgagee. Scrace v. Whittington, 2 B.

tor, and not the petitioning creditor, is the 1. To messenger in bankruptcy.-The solici party liable to the messenger under a commisExparte Hartop, 12 Ves. 349 (April 19, 22, sion of bankruptcy, which had been superseded. 1806).

bankruptcy is not liable in the first instance to
2. The solicitor under a commission of
the messenger, whom he nominates, for his
bill of fees, he is merely the medium through
which it is convenient to the messenger to re-
& Sel. 438; 2 Rose, B. C. 263 (April 30,
ceive his bill of fees. Hartop v. Juckes, 2 M.

licitor, is liable to the messenger under a com-
3. The petitioning creditor, and not the so-
mission of bankrupt, for the costs and ex-
merely, and is not to be regarded as a prin-
penses attending it. The solicitor is an agent
cipal as respects the messenger.
White, Holt, N. P. 376 (Mich. T. 1816).
Hart v.






That a Bill has been introduced into your Honourable House to abolish the jurisdiction

of all Ecclesiastical and Peculiar Courts in England and Wales respecting wills and administrations, to establish a distinct Court of Probate and administration, and otherwise to amend the law in relation to matters testamentary.

That by the said Bill it is proposed to transfer all the powers and jurisdiction now exercised by the said Courts, in relation to the probate of wills, the grant of administration, and the establishment of testamentary instruments to a Court, to be called the "Testamentary Court," having equal jurisdiction with the Court of Chancery with respect to matters within its jurisdiction, and the practice and proceedings whereof are to be similar to the practice and proceedings of the Court of Chancery.

That whilst your petitioners approve of the introduction into Parliament of some measure for improving the jurisdiction and practice of the Ecclesiastical Courts, they cannot view without alarm the proposal to transfer the whole testamentary business of the country to the Court of Chancery, of which Court, the proposed new Testamentary Court will, if established, substantially and virtually become a


That in the opinion of your petitioners, no ground whatever exists for such transfer in regard merely to the grant of probates and administrations, which your petitioners have reason to believe amount in England and Wales to upwards of 25,000 per annum, of which vast number about 98 per cent. are altogether uncontested, and free from litigation, and the proceedings to obtain which ought to be as speedy, as inexpensive, and as simple as possible, and so far as may be, transacted in the neighbourhood of the parties interested in

the same.

That your petitioners are convinced that the proposed system will add most materially to the cost of obtaining such grants, whilst the

immense amount of business to be transacted by the Testamentary Court, will render unavoidable great delays, and occasion vast public inconvenience.

vate life, and they are of opinion, that the transmission of almost every will, and of the probate thereof through the post office, which will become necessary under the proposed system, will be attended with great risk, and cccasion serious anxiety and inconvenience.

That in the event of fire, or public disturbance, the whole of the wills forming part of the title to the bulk of the property of the kingdom, will, if removed to London, be liable to be involved in one common destruction, which, when deposited in different registries, could

never be the case.

That if the small peculiar jurisdictions throughout the kingdom were abolished, and the other jurisdictions consolidated, so as to leave in each district one Court for the proof of wills, and grant of administrations, and if one probate or administration only be made sufficient in all cases, the true interests of the public would be thereby consulted.

That your petitioners are able to state that the documents kept in the registry at York have been, and now are preserved with great care, and the public have always had ready access to them at little cost, and it is submitted that original wills, forming part of the title to a large proportion of the property of the country, ought to remain in local registries, for the more easy inspection of those interested under them, who are nearly in all cases resident in the neighbourhood, and to whom it is frequently of great importance that they should have the opportunity of readily

seeing the documents.

Numerous practical inconveniences of a harassing and expensive character, which the operation of the Bill would necessarily inflict on the community at large, might easily be pointed out, but your petitioners refrain from entering further into detail. They anxiously hope that the pernicious and erroneous principle on which some of the main provisions of the Bill are founded, will not be recognised by Parliament.

Your petitioners therefore humbly pray that your Honourable House will not sanction the principle on which the said Bill is based, but that provisions may be made for the proof of wills, and grant of administrations, and the trial of all questions arising out of the same, in the several localities wherein the same may arise, and that for the accomplishment of these purposes your House will introduce such altetions or improvements in the existing laws, practice, or regulations of local Courts as to



Honourable House shall seem meet. And your petitioners will ever pray, Given under the Common Seal of the said

That your petitioners regard the proposed City of York, the 3rd day of May, 1855. enactment relative to the printing of copies of each will for sale, and the publication of the contents thereof in the London Gazette, as an unnecessary interference with the affairs of pri

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