Present Operation of the Insolvent Debtors' Acts. 351 of Exchequer,' upon a writ of habeas comes up for examination. It was necessarily corpus : incidental to the power of determining the sufficiency or truth of the petition, that the Partington was committed in 1841 to the commissioner should have the power of reFleet, in execution for 5607., and was detained manding the petitioner. In other words, the under two other writs, one of which at least power of remand was involved in the power of was issued in an action for the recovery of a discharge, as soon as it appeared that the order debt. On the 23rd August, 1844, being then for discharge had improvidently issued. The in custody in the Queen's prison, upon the commissioner had in fact decided that the peti three executions above mentioned, and not tioner's case was not within the act, and being a trader, Partington petitioned the Court whether he had rightly decided or not, this of Bankruptcy, under the statutes 5 & 6 Vict. court could not determine. It was enough to c. 116, and 7 & 8 Vict. c. 96, obtained an say that the commissioner had exercised his interim order for protection, and was discharged jurisdiction, and that the court could not from custody. He came up for his first ex-review his decision. As to the last objection, amination on the 27th September, 1844, and the court was of opinion, that the case did not the commissioner then made an order to the fall within the proviso, which must be coneffect, that as it appeared upon the examination strued with reference to the preceding part of of William Partington that he had recently the clause to which it was appended and the petitioned the Insolvent Debtors' Court, and cases there mentioned. Section 28 gives the that all his estate and effects were vested in the bankrupt commissioners a power analogous to provisional assignee of that court, and that the that given the insolvent commissioners, of proceedings were then pending, the commis- making an order to protect the petitioner from sioner now refused to grant a final order, and arrest or detention, to take effect after a time therefore, in pursuance of the statute, ordered, to be named in such order. The proviso is in that the petitioner should be remanded to his restraint of that power, and limits the period former custody, as if the interim order had during which the petitioner would be liable to not been made. Under this order, the peti- imprisonment to twelve months. This liability tioner was taken, by one of the messengers of is in the nature of punishment, and is clearly the Court of Bankruptcy, to the Queen's prospective; and had the commissioner found prison, and there detained in execution. The any reason in the circumstances to justify him legality of this order of remand was the matter in so doing, he might have made such postdiscussed on habeas corpus, and it was objected to on three distinct grounds. poned order, so that the petitioner could not have obtained his discharge until the end of It was contended, in the first place, that the twelve months. No such order, however, had only circumstances under which a commis- been made, and the commissioner evidently sioner was authorised to remand a petitioner to proceeded on the ground that the petitioner's custody, were those specified in section 24, and case, as disclosed on his examination, did not that as recently petitioning the Insolvent bring him within the benefit of the act; that Debtors' Court was not one of those circum- the order for his discharge and protection was stances specified in that section, the commis- sued out improvidently; and that by a power sioner had no authority to remand him. 2ndly, It was said, that even if the petitioner was not entitled to the benefit of the act, as he had been regularly discharged from custody, he could only be taken by the creditor on a fresh writ, or by the sheriff on the old writ, The case was afterwards brought before and that his caption by the messenger of the the Court of Exchequer, and the same Court of Bankruptcy was illegal. Lastly, it points again discussed, when that court was submitted, that as it appeared the prisoner expressed its concurrence with the judg had been in custody more than twelve months ment of the Court of Queen's Bench, and before making application to the Court of incidental to the jurisdiction, though not given in terms by the act, the petitioner both might and ought to be removed to his original custody. The prisoner was therefore remanded. Bankruptcy, he was entitled to his discharge declared itself satisfied with the reasons under the proviso in section 28, by which it is assigned for that judgment." declared that "no debtor shall be imprisoned on any process for more than twelve calendar months, for any debt contracted before filing his petition, in case the final order shall be refused, or shall not be made, or in case the protecting order shall not be renewed." In reference to the first and second objections, Lord Denman, C. J., in pronouncing the judgment of the court, observed, that the discharge and interim order are founded entirely on the petition, which is an exparte proceeding, liable to be contradicted when the petitioner Exparte Partington, 2 Dowl. & L. 650. The last case in which the construction of the stat. 7 & 8 Vict. c. 96, became the subject of judicial consideration, was that of Thomas v. Hudson," argued in the Court of Exchequer in Easter Term last, and in which judgment was given at the sittings 352 New Statutes Effecting Alterations in the Law. in banc after Trinity Term. It was an hedges, ditches, ways, waters, watercourses, action against the keeper of the Queen's lights, liberties, privileges, easements, profits, prison, for an escape, and in the course of commodities, emoluments, hereditaments, and the argument, the difficulties of putting comprised belonging or in anywise appertain appurtenances whatsoever, to the lands therein such a construction on the act as was con- ing, or with the same demised, held, used, ocsonant to justice, appeared to be so great, cupied, and enjoyed, or taken or known as that a hope was expressed from the Bench, part or parcel thereof, and also the reversion or that as the subject of debtor and creditor was known to be under the consideration of the legislature, the provisions of this statute might be reconsidered. The session, however, has closed without any other alteration of the insolvent law than that already adverted to; and it remains the same lands and every part and parcel only for those who preside in our courts thereof with their and every of their appurte of justice to use their best endeavours to nances. mitigate, if they cannot prevent, the evils arising from the confused, contradictory, and ill-digested 'provisions of the various acts now in force. reversions, remainder and remainders, yearly and other rents, issues, and profits of the same lands, and of every part and parcel thereof, and all the estate, right, title, interest, inheritance, and demand whatsoever, both at law and in use, trust, property, profit, possession, claim, equity, of the grantor, in, to, out of, or upon 3. Stamp duty on deed to be same as on lease, this act shall be chargeable with the stamp &c., for a year. That every such deed under duty with which the same would have been chargeable in case it had been a release founded on a lease or bargain and sale for a year, and also with the same stamp duty (exclusive of NEW STATUTES EFFECTING ALTERA- progressive duty) with which such lease or TIONS IN THE LAW. REAL PROPERTY CONVEYANCE. 8 & 9 VICT. c. 119. bargain and sale for a year would have been chargeable. 4. Remuneration for deed under the act not to be by length only.-That in taxing any bill for preparing and executing any deed under this act it shall be lawful for the taxing officer, and An act to facilitate the Conveyance of Real he is hereby required, in estimating the proper Property. [8th August 1845.] sum to be charged for such transaction, to consider, not the length of such deed, but only the skill and labour employed, and responsibility incurred, in the preparation thereof. 1. Where the words of Column I. of the second schedule are employed, the deed to have the same effect as if the words of Column II. were in- 5. Deed failing to take effect by this act to be serted. Whereas it is expedient to facilitate as valid as if act not made.-That any deed or the sale and conveyance of real property: Be it part of a deed which shall fail to take effect by enacted by the Queen's most excellent Majesty, virtue of this act shall nevertheless be as valid by and with the advice and consent of the Lords and effectual, and shall bind the parties thereto, spiritual and temporal, and Commons, in this so far as the rules of law and equity will permit, present parliament assembled, and by the au- as if this act had not been made. thority of the same, That whenever any party 6. Construction of act.-That in the constructo any deed made according to the forms set tion and for the purposes of this act, and forth in the first schedule to this act, or to any the schedules hereto annexed, unless there other deed which shall be expressed to be made be something in the subject or context repug. in pursuance of this act, or referring thereto, nant to such construction, the word "lands" shall employ in such deed respectively any of shall extend to all freehold tenements and the forms of words contained in Column I. of hereditaments, whether corporeal or incorthe second schedule hereto annexed, and dis- poreal, and to such customary lands as will tinguished by any number therein, such deed pass by deed, or deed and admittance, and not shall be taken to have the same effect and be by surrender, or any undivided part or share construed as if such party had inserted in such therein respectively; and every word import deed the form of words contained in Column ing the singular number only shall extend and II. of the same schedule, and distinguished by the same number as is annexed to the form of words employed by such party; but it shall not be necessary in any such deed to insert any such number. be applied to several persons or things as well as one person or thing, and the converse; and every word importing the masculine gender only shall extend and be applied to a female as well as a male; and the word "party" shall mean and include any body politic or corporate or collegiate as well as an individual. 2. Deed to include all houses, &c., and the reversion and all the estate. That every such deed, unless any exception be specially made 7. Schedules, &c. to form part of act.-That therein, shall be held and construed to in- the schedules, and the directions and forms clude all houses, outhouses, edifices, barns, therein contained, shall be deemed and taken stables, yards, gardens, orchards, commons, to be parts of this act. trees, woods, underwoods, mounds, fences, 8. Commencement of act.-That this act shall New Statutes Effecting Alterations in the Law. commence and take effect from and after the first day of October next. 10. Not to extend to Scotland. act shall not extend to Scotland. That this 353 and assigns, in manner following; (that is to COLUMN I.-2. That he has the right to con- SCHEDULES TO WHICH THIS ACT REFERS. ing any act, deed, matter, or thing by the said The First Schedule. This indenture, made the day of covenantor done, executed, committed, or knowingly or wilfully permitted or suffered, to the contrary, he the said covenantor now hath 184, [or other year], in pursuance in himself good right, full power, and absolute authority to convey the said lands and other the premises hereby conveyed, or intended so to be, with their and every of their appurtenances, unto the said covenantee, in manner aforesaid, and according to the true intent of these presents. sideration of of an act to facilitate the conveyance of real property, between [here insert names of parties, and recitals, if any], witnesseth, that in consterling now paid by the said [grantee] or [grantees] to the said [grantor] or [grantors] (the receipt whereof is hereby by him or them acknowledged), he or they the said [grantor] or [grantors] doth or do grant unto the said [grantee] or [grantees], his or their heirs and assigns for ever, All, &c. [parcels.] [Here insert covenants, or any other provisions.] In witness whereof the said parties hereto have hereunto set their hands and seals. The Second Schedule. DIRECTIONS AS TO 66 THE FORMS IN THIS 66 1. Parties who use any of the forms in the first column of this schedule may substitute for or covenantee," or, the words covenantor "releasor" or "releasee," any name or names, and in every such case corresponding substitutions shall be taken to be made in the corresponding forms in the second column. 2. Such parties may substitute the feminine gender for the masculine, or the plural number for the singular, in any of the forms in the first column of this schedule, and corresponding changes shall be taken to be made in the corresponding forms in the second column. 3. Such parties may introduce into or annex to any of the forms in the first column any express exceptions from or other express qualifications thereof respectively, and the like exceptions or qualifications shall be taken to be made from or in the corresponding forms in the second column. 4. Such parties may add the name or other designation of any person or persons, or class or classes of persons, or any other words, at the end of form 2, of the first column, so as thereby to extend the words thereof to the acts of any additional person or persons or class or classes of persons, or of all persons whomsoever; and in every such case the covenants 2, 3, and 4, or such of them as shall be employed in such deed, shall be taken to extend to the acts of the person or persons, class or classes of persons, so named. COLUMN I-1. The said [covenantor] covenants with the said [covenantee.] COLUMN II.-1. And the said covenantor doth hereby, for himself, his heirs, executors, and administrators, covenant, promise, and agree with and to the said covenantee, his heirs COLUMN I.-3. And that the said [covenantee] shall have quiet possession of the said lands. COLUMN II.-3. And that it shall be lawful for the said covenantee, his heirs and assigns, from time to time and at all times hereafter, peaceably and quietly to enter upon, have, hold, occupy, possess, and enjoy the said lands and premises hereby conveyed, or intended so to be, with their and every of their appurtenances, and to have, receive, and take the rents, issues, and profits thereof and of every part thereof to and for his and their use and benefit, without any let, suit, trouble, denial, eviction, interruption, claim, or demand whatsoever of, from, or by him the said covenantor or his heirs, or any person claiming or to claim by, from, under, or in trust for him, them, or any of them. COLUMN I.-4. Free from all incumbrances. COLUMN II.-4. And that free and clear, and freely and absolutely acquitted, exonerated, and for ever discharged, or otherwise by the said covenantors or his heirs well and sufficiently saved, kept harmless, and indemnified of, from, and against any and every former and other gift, grant, bargain, sale, jointure, dower, use, trust, entail, will, statute, recognizance, judgment, execution, extent, rent, annuity, forfeiture, re-entry, and any and every other estate, title, charge, trouble, and incumbrance whatsoever, made, executed, occasioned, or suffered by the said covenantor or his heirs, or by any person claiming or to claim by, from, under, or in trust for him, them, or any of them. COLUMN I.-5. And the said [covenantor] covenants with the said [covenantee] that he will execute such further assurances of the lands as may be requisite. COLUMN II.-5. And the said covenantor doth hereby, for himself, his heir, executors, and administrators, covenant, promise, and agree with and to the said covenantee, his heirs and assigns, that he the said covenantor, his heirs, executors, or administrators, and all and every other person whomsoever having or claiming, or who shall or may hereafter have or claim, any estate, right, title, or interest whatsoever either at law or in equity, in, to or out of the saids land and premises hereby conveyed or intended so to be, or any of them, or any part thereof, by, from, under, or in trust for him, 354 New Statutes Effecting Alterations in the Law." COLUMN I.-8. And the said [releasor] releases to the said [releasee] all his claims upon the said lands. them, or any of them, shall or will from time tofore made, done, committed, executed, or to time and at all times hereafter, upon every wilfully or knowingly suffered, any act, deed, reasonable request, and at the costs and charges matter, or thing whatsoever whereby or by of the said covenantee, his heirs or assigns, means whereof the said lands and premises make, do, execute, or cause to be made, done, hereby conveyed, or intended so to be, or any or executed, all such further and other lawful part or parcel thereof, are, is, or shall or may acts, deeds, things, devices, conveyances, and be in anywise impeached, charged, affected, or assurances in the law whatsoever, for the better, incumbered in title, estate, or otherwise howmore perfectly, and absolutely conveying and soever. assuring the said lands and premises hereby conveyed or intended so to be, and every part thereof, with their appurtenances, unto the said covenantee, his heirs and assigns, in manner COLUMN II.-8. And the said releasor hath as aforesaid, as by the said covenantee, his remised, released, and for ever quitted claim, heirs and assigns, his or their counsel in the law, and by these presents doth remise, release, and shall be reasonable devised, advised, or required, for ever quit claim, unto the said releasee, his so as no such further assurances contain or im- heirs and assigns, all and all manner of right, ply any further or other covenant or warranty title, interest, claim, and demand whatsoever, than against the acts and deeds of the person both at law and in equity, into and out of the who shall be required to make or execute the said lands and premises hereby granted, or insame, and his heirs, executors, or administra-tended so to be, and every part or parcel theretors, only, and so as no person who shall be of, so as that neither he nor his heirs, executors, required to make or execute such assurances administrators, or assigns, shall, nor may at shall be compellable for the making or execut ing thereof to go or travel from the usual place of abode. any time hereafter, have, claim, pretend to, challenge, or demand the said lands and premises, or any part thereof, in any manner howsoever; but the said releasee, his heirs and assigns, and the same lands and premises, shall from henceforth for ever hereafter be exonerated and dis COLUMN I.-6. And the said [covenantor] covenants with the said [covenantee] that he will produce the title deeds enumerated hereunder, · and allow copies to be made of them, at the ex-charged of and from all claims and demands pense of the said [covenantee.] whatsoever which the said releasor might or could have upon him in respect of the said lands or upon the said lands. ASSIGNMENT OF TERMS. 8 & 9 VICT. c. 112. Terms unnecessary. [8th August, 1845.] COLUMN II.-6. And the said covenantor doth hereby, for himself, his heirs, executors, and administrators, covenant, promise, and agree with and to the said covenantee, his heirs and assigns, that the said covenantor and his heirs shall and will, unless prevented by fire or other inevitable accident, from time to time and at all times hereafter, at the request, costs, and An act to render the Assignment of satisfied charges of the said covenantee, his heirs or assigns, or his or their attorney, solicitor, agent, or counsel, at any trial or hearing in any action or suit at law or in equity or other judicature, or otherwise, as occasion shall require, produce all and every or any deed, instrument, or writing hereunder written, for the inanifestation, defence, and support of the estate, title, and possession of the said covenantee, his heirs or assigns, in or to the said lands and premises hereby conveyed, or intended so to be, and, at the like request, costs, and charges, shall and will make and deliver, or cause to be made and delivered, true and attested or other copies or abstracts of the same deeds, instruments, and writings respectively, or any of them, and shall and will permit and suffer such copies and abstracts to be examined and compared with the said original deeds by the said covenantee, his heirs and assigns, or other person as he or they shall for that purpose direct and appoint. COLUMN I-7. And the said [covenantor] covenants with the said [covenantee] that he has done no act to incumber the said lands. COLUMN II.-7. And the said covenantor, for himself, his heirs, executors, and administrators, doth hereby covenant, promise, and agree with and to the said covenantee, his heirs and assigns, that he hath not at any time here On the 31st December 1845, satisfied terms of years attendant on inheritance, &c. of land, to cease, except, &c.—Whereas the assignment of satisfied terms has been found to be attended with great difficulty, delay, and expense, and to operate in many cases to the prejudice of the persons justly entitled to the lands to which they relate: Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present parliament assembled, and by the authority of the same, 1. That every satisfied term of years which, either by express declaration or by construction of law, shall upon the 31st day of December 1845, be attendant upon the inheritance or reversion of any lands, shall on that day absolutely cease and determine as to the land upon the inheritance or reversion whereof such term shall be attendant as aforesaid, except that every such term of years which shall be so attendant as aforesaid by express declaration, although hereby made to cease and determine, shall afford to every person the same protection against every incumbrance, charge, estate, right, action, suit, claim, and demand as it would Notes on Equity. have afforded to him if it had continued to subsist, but had not been assigned or dealt with, after the said 31st day of December 1845, and shall for the purpose of such protection be considered in every court of law and of equity to be a subsisting term. 355 Such So, likewise, it may now be affirmed that the general law established for the distribution of intestates' estates is, (practically speaking,) almost exclusively dispensed by the Court of Chancery. 2. Satisfied terms now subsisting, &c., to cease being the case, let us suppose that letters on becoming attendant upon inheritance, &c. of of administration have been granted by lands. And be it enacted, That every term of Sir Herbert Jenner Fust to A, as sole next years now subsisting or hereafter to be created, of kin to the intestate. This determines becoming satisfied after the said 31st day of the question of administration. But sup- December 1845, and which, either by express declaration or by construction of law, shall pose that B institutes a suit for distribuafter that day become attendant upon the in- tion in the Court of Chancery; — is the heritance or reversion of any lands, shall imme- Court of Chancery precluded from indiately upon the same becoming so attendant quiring, by its own process, who is next of absolutely cease and determine as to the land kin? In other words, is the Court of upon the inheritance or reversion whereof such Chancery bound, in the exercise of its disterm shall become attendant as aforesaid. tributing jurisdiction, to award the pro3. Construction of act.-And be it enacted, That in the construction and for the purposes has been successful in obtaining admiperty of the deceased to A, simply because of this act, unless there be something in the subject or context repugnant to such construc- nistration from the ecclesiastical court? tion, the word "lands" shall extend to all This, to use Mr. Hargrave's phrase, freehold tenements and hereditaments, whether is not an imaginary jurisconsult exercitacorporeal or incorporeal, and to all such cus- tion. The question has very lately been tomary land as will pass by deed, or deed and the subject of forensic and judicial discusadmittance, and not by surrender, or any un- sion, and was only finally decided on the divided part or share thereof respectively; and 10th of last July, by a judgment of the every word importing the singular number only shall extend and be applied to several perLord Chancellor, in the case of Barrs v. sons or things as well as one person or thing; Jackson, just published by Mr. Phillips.a and every word importing the masculine gender only shall extend and be applied to a female as well as a male. 5. Not to extend to Scotland. enacted, That this act shall not Scotland. NOTES ON EQUITY. And be it The facts were these: - Harriet Martindale Smith dying intestate and unmarried, a contest arose in the Prerogative Court for the administration of her personal estate, between Sarah Harriet, (wife of John Barrs,) who claimed as niece and sole next of kin, and Richard Jackson, who claimed as second cousin and sole next of kin of the intestate. The Prerogative Court pronounced, that "as far as it appeared from the evidence in the cause, the deceased had died a spinster, without parent, brother, sister, uncle, or aunt, nephew or niece, or cousin-german, and intestate, leaving Richard DOCTRINE OF RES JUDI- Jackson her lawful second cousin and next of kin." Administration was therefore committed to Jackson, on the express ground that he alone was next of kin. So that the question of administration and the question of propinquity were at once disposed of by a tribunal of competent jurisdiction. SENTENCE OF THE ECCLESIASTICAL COURT CATA. Soon after this decision of the Ecclesiastical Court, the defeated party (the Barrs) filed their bill in Chancery against Jackson ; and the ■ 1 Phil. 582. By the 31 Edward 3, c. 11, it is enacted, that in cases of intestacy the ordinary shall depute the "nearest and most lawful friends" of the deceased to administer his goods. This is the origin of grants of administration by the church courts. The power of the ecclesiastical judge was enlarged by the 21 Hen. 8, c. 5, which permitted him to grant administration either to the widow or the next of kin, or to both b There are cases in which the sole next of of them, at his own discretion; and where kin of an intestate, though under no disability, two or more persons were in the same have been excluded from the administration, degree of kindred, it gave the ordinary notwithstanding the positive provisions of the his election to accept whichever he pleased. Upon this footing stands the general law of administration at this day. It is wholly and exclusively a matter of ecclesiastical cognizance and jurisdiction. legislature. Fielder v. Hanger, 3 Hagg. 769. But in the above case, the express foundation of the sentence was, that the preferred persop was next of kin to the testator. The question of propinquity was, therefore, of the essence of the sentence. |