210 Letters from a Student.- Estoppel by Recitals. and then go on to the later, or vice versa. Mr. Barnaby recommends the latter mode, as you thus more easily acquire the rules of law at present in force; but there are conflicting opinions as to this. AMBROSE HARCOURT. Temple, Jan. 8th, 1842. It is indeed a great mistake, I am satisfied, to neglect the copying of precedents; the copying them alone without any practice, and without reading will do but little; but, thus accompanied, precedent copying is very useful; it makes us familiar I find, with I have now shown you how I pass the legal phraseology, and modes of expres- day; I have only to add, that about eleven sion. I begin now to think, so far as I go to bed, and am soon-where you are, legal documents are concerned, in the perhaps, after reading this-asleep. lingua franca of the Temple. Nothing haYour's truly, bituates the mind so much to this, as the judicious copying of precedents. In sending you these remarks, I find myself invo-" luntarily using Barnaby's language, and do ESTOPPEL BY RECITALS. not consider this as my advice, but his. After dinner, I generally return to his RECITALS in a deed as to a particular fact, chambers, or read in my own. I here ge- will operate by way of estoppel so far as the nerally confine myself to law, and am now parties to the deed are concerned, but they hard at work on Selwyn's Nisi Prius, of will not have this operation so far as a which there is a new edition (the 10th) general statement is concerned. Shelley v. just out, dedicated thus "Alberto Principi Wright, Willes, 9; Rees v. Lloyd, Wightw. Legum Anglia Studioso. Hoc opus plus quam 123; Holmes v. Ailsbie, 1 Madd. 551. xxx annorum laboribus ad decimam editionem But as against third parties, recitals cannot perductum ipsius Permissu D.D. D. Guli- be any evidence of the facts contained in elmus Selwyn;" (so that the prince sets us a good example.) This is a book of wellestablished reputation, and forms a good relief to Tidd, and the practical labours of the day. them, unless possession has followed and accompanied the matters therein recited; in which case that enjoyment will be a strong circumstance to prove that the facts were actually as they are stated to be. Per Lord You asked me to send you a course of Gifford, M. R., Fort v. Clarke, I Russ. preparatory reading for a pleader. Barnaby 601; see also Prosser v. Watts, 6 Madd. recommends as follows; first, read Black- 59. So in a late case, where a distinct stone throughout. Then take the most statement of a particular fact is made in the modern edition, (this is important,) and recital of a bond or other instrument under work hard at Vol. 3. Then Stephens on seal, and a contract is made with reference Pleading, a good and useful book. You may to that recital, it was held, as between the then safely go to a pleader, and adopt the parties to that instrument, and in an action course I have laid down in this letter, with upon it, not competent to the parties Tidd and Lush, and reading a good work bound to deny the recital; and a recital in on Nisi Prius Law and Evidence. After an instrument not under seal, may be such Selwyn, I shall take Roscoe. Phillips on as to be conclusive to the same extent. Evidence we read together, you remember. But a party to an instrument is not estopped Starkie, in three thick volumes, is more in an action by another party, not founded practical, but both are good. These works on the deed and wholly collateral to it, to mastered, and accompanied by practice, dispute the facts so admitted; but evidence will go far, Barnaby says, to make a fair of the circumstances under which such adpleader, and prepare him for the reports, mission was made is receivable to shew that where he will find the rules he has learnt the admission was inconsiderately made, applied to the actual business of life. He and is not entitled to weight as proof of will be here slow to receive as gospel all the fact it is used to establish. Lord Coke that is contained in the arguments of coun- says, however, speaking of estoppel, "neisel; but he will see from them the forms ther doth a recital conclude, because it is no and manners in which such arguments are direct affirmation," Co. Litt. 352, b. But prepared. But it is the judgments only, I this is directly disregarded in the case to need hardly say, that are to be relied on, which we allude, as Mr. Baron Parke lays and even these depend a good deal on the down the rules we have cited "notwithcharacter of a Judge; but this latter know-standing what Lord Coke says on the ledge can only be acquired by degrees. matter of recital in Coke upon Littleton, There are two ways of reading the Reports. 352, b." His Lordship went on to say, You may read backwards or forwards; that "a strong instance as to a recital in a deed s, you may begin with the earlier Reports, is found in the case of Lainson v. Tremere, Estoppel by Recitals.—Judgments affecting Real Property. 211 in which the provisions of this statute will not affect purchasers, it is proposed to consider, in the first place, the law as it stands unaffected by the 1 & 2 Vict. c 110; and secondly, the effect of judgments upon the lands of the judgment debtor, where the creditor is in a situation to avail himself of the provisions of the act. At common law, the goods and chattels of the debtor, and the annual profits of his lands as they arose, were the only things which could be taken in execution in personal actions. 3 Co. 11. To provide a more extensive remedy the 13th of Edw. 1, st. 1, c. 18 (Westminster 2), enacted that when a debt was recovered or acknowledged, or damages awarded in the King's Courts, it should be in the election of the creditor to have a writ of fieri fucias, or to have delivered to him all the chattels of the debtor (saving only his oxen and beasts of the plough) and the one half of his land, until the debt was levied upon a reasonable ex 1 Adol. & El. 662, where in a bond to secure the payment of rent under a lease stated, it was recited that the lease was at a rent of 1701., and the defendant was estopped from pleading that it was 1401. only, and that such amount had been paid. So, where other particular facts are mentioned in a condition to a bond, as that the obligor and his wife should appear, the obligor cannot plead that he appeared himself, and deny that he is married, in an action on the bond, 1 Roll. Abr. 873. All the instances given in Com. Dig. Estoppel, A. 2, under the head Estoppel, by matter of writing (except one, which relates to a release) are cases of estoppel in actions on the instrument in which the admissions are contained. By his contract in the instrument itself, a party is assuredly bound, and must fulfil it. But there is no authority to shew that a party to an instrument would be estopped in an action by the other party not founded on the deed and wholly collateral to it, to dispute the facts so admitted, though the recitals would certainly be evidence; for instance, in another suit, though between the same parties, where a question should arise whether the plaintiff held at a rent of 1701. in the one case, or was married in the other case, it could not be held that the recitals in the bond were conclusive evidence of these facts. Still less would matter alleged in the instrument, wholly immaterial to the contract therein contained; as for instance, suppose an indenture or bond to contain an unnecessary description of one of the parties as assignee of a bankrupt, overseer of the poor, or as filling any other charac-cenary, or in common, and all rent-charges. ter, it could not be contended that such impropriate tithes, and lands held in ancient statement would be conclusive on the other demesne, were liable to be extended. If party in any other proceeding between the property was in reversion, and was subthem." Carpenter v. Buller, 8 Mee. & Wels.ject to a rent, the creditor was entitled to extend a moiety of the reversion and a moiety of the rent. 209. JUDGMENTS, SO FAR AS THEY AFFECT REAL PROPERTY. tent. of execution was framed, called a writ of In pursuance of this statute a new writ elegit, and upon this writ the sheriff was to impannel a jury to make inquiry of all the goods and chattels of the debtor, and to inquiry as to his real property, and upon appraise the same, and to make the same such inquisition to deliver all the goods and chattels and a moiety of the lands to the creditor. Under the term "land" in the statute, the general freehold property of the debtor which he held in severalty, copar An estate in joint-tenancy was not extendible after the death of the jointtenant, who acknowledged the judgment; and copyholds, not being expressly mentioned in the statute, could not be taken in execution upon an elegit. And the statute has been held not to apply to advowsons in gross, because they were incapable of division, and could yield no pecuniary fruit; nor to glebe land or the profits of a benefice, nor to rents seck. THE law of judgments, so far as they affect real and personal property, has been considerably altered by the recent statute of the 1 & 2 Vict. c. 110. The object of this statute, however, was not to repeal the old law, but to give the judgment creditor, who is able and willing to avail himself of Estates tail could not be extended so as the benefits of this act, more effectual re- to affect the issue in tail; and the wife's medies against the property of his debtor lands were only extendible during the than he had before the statute; and inas- coverture, or during the interest of the much as recourse to the old law will still husband after his wife's death, as tenant by be necessary in a vast number of instances the curtesy. P 2 212 Judgments affecting Real Property. Upon a writ of elegit the sheriff might | whom such writ of execution may be sued either deliver a moiety of a term of years to forth but from the time that such writ shall the cognizee, as part of the lands and tene-be delivered to the sheriff, undersheriff, or ments of the debtor, or sell the whole term, coroner to be executed, and that such time as part of his personal estate. 3 Bac. Abr. is to be indorsed upon the wiit. 380; 8 Co. 171. By means of this statute a judgment, when duly entered up, became a lien upon all the lands which the debtor had at the time, and upon all those which he subsequently acquired; and no subsequent act of the debtor's, not even an alienation for a valuable consideration without notice, could avoid it. 2 Cru. Dig. 49. When a creditor obtains two judgments of different terms, he is entitled on the one judgment to extend one moiety of the debtor's lands, and on the other judgment, a moiety of that which remains after the first extent. Huyt v. Cogan, Cro. Eliz. 482. But a plaintiff obtaining two judgments of the same term, can, by suing out two elegits at the same time, take the entirety in execution. Attorney General v. Andrew, Hard. 23. And it has been decided that when two elegits are issued at the same time upon judgments signed in the same term, the sheriff may extend on each an entire moiety of the defendant's land, though the judgments are at the suit of different plaintiffs. 5 Bing. Rep. 327. The term "goods" in this section, includes the leaseholds of the judgment debtor. In Forth v. Duke of Norfolk, 4 Madd. 506, Sir John Leach, V. C., observed, that a judgment is at law no lien upon a legal term, and when the interest of the debtor is legal, a judgment is no lien in equity. Notwithstanding this judgment, the debtor could well assign his legal term at his pleasure. Burdon v. Kennedy, 3 Atk. 739. It has been a common practice to keep on foot long terms of years after the original purposes of their creation may have been satisfied, and on each sale of the inheritance to assign them to a trustee, for the purchaser's protection. By these means a purchaser might protect himself from judgments entered up after the creation of the term, provided he bought without notice of the subsisting incumbrances. As, however, a judgment creditor was not affected by an outstanding term which was created subsequently to his lien, and judgments entered up after the creation of the term were an immediate incumbrance upon the expectant reversion, it was important to By a fiction of law the whole term is ascertain that the term was sufficiently old considered, for many purposes, as but in its creation, and had such a time to run one day; and therefore all judgments re- as to afford the purchaser the protection he lated to the first day of the term in required; and it was also necessary to see which they had been given or acknowledg- that the term had not been so neglected as ed. To remedy the injury which resulted to afford a presumption that it had been from this doctrine to purchasers, who were previously surrendered. 3 Sug. V. & P. 25, often, in consequence, affected by judg-sec. 3. ments obtained after their conveyances had been executed, it was enacted by the 14th and 15th sections of the Statute of Frauds, that any judge or officer of any of his Majesty's Courts at Westminster that should sign any judgments, should, at the signing of the same, without fee, set down the day of the month and year of his so doing, and that such judgments should be made to operate as against purchasers bond fide for valuable consideration, only from such time as they should be signed. As between creditors, however, the old rule of relation still prevails; and if the judgments are of the same term, the date of both is referred to the first day of that term. Robinson v. Tong, 3 P. W'ms. 398. The 16th section of the Statute of Frauds enacts that no writ of fieri facias or other writ of execution shall bind the property of the goods of the person against In consequence of the difficulty of obtaining execution against any portion of the property of the judgment debtor, of which he was merely the equitable owner, the 10th section of this statute empowers every sheriff, officer, &c. to make and deliver execution of all such lands, tenements, rectories, tithes, rents, and hereditaments, as any other person or persons should be seised or possessed of in trust for him against whom execution is so sued, like as if the said party against whom exccution should be sued had been seised of such lands, &c. of such estate as they be seised in trust for him at the time of the said execution sued. It has been decided that an equitable interest in a term of years is not within the statute. Thus, in Scott v. Scholey, 8 East, 467, Lord Ellenborough said, "The very silence of the Statute of Frauds,-which, while it expressly introduces a new provi Judgments affecting Real Property.-Practical Points. sion in respect to lands and tenements held in trust for the person against whom an execution is sued, says nothing as to trusts of chattel interests, -affords a strong argument that those interests are meant to continue in the same situation and plight in respect of executions, in which both freehold and leasehold trust interests equally stood prior to the passing of the statute." Neither could any trust estate be taken in execution under the statute, but such as the debtor had at the time of execution sued. Thus, in Hunt v. Coles, Com. Rep. 226, it was said that the words at the time of the said execution sued, refer to the seisin of the trustee; and therefore if the trustee had conveyed the lands before execution sued, though he was seised in trust for the defendant at the time of the judgment, the lands could not be taken in execution. A judgment not being a lien on the legal estate of the trustee until the writ was lodged in the sheriff's office, a purchaser without notice, having equal equity with the judgment creditor, was able to protect himself by getting in the legal estate at any time before that period. 1 Sand. Us. 275. 213 In such a case, however, the judgment would be a lien in equity upon the unpaid part of the purchase money, and therefore a purchaser, with notice of the lien, would act unsafely in paying over what remained in his hands to the vendor, without previously getting an authority for so doing from the judgment creditor. 3 Prest. Abstr. 329. And in a case where a father conveyed real estates to trustees, upon trust to sell and repurchase annuities granted by his son, and pay the son's debts at their discretion, and subject thereto, upon trust for the father for life, with remainder to his son in fee; an annuitant, mentioned in a schedule to the deed, and stated to have entered up and docketed a judgment against the son, upon a warrant of attorney which accompanied his security, was held to have no lien by virtue of his judgment upon the trust estates in the hands of a purchaser : Sir John Leach, M. R., said, "The petitioner and the other scheduled judgment creditors had no legal lien upon the trust estates, but they had a possible equitable lien, depending upon a contingency. If a person purchased an equitable estate The trustees had a full authority to sell, with notice of subsisting judgments upon and convert the realty into personalty. the property, the equity of the judgment If any part had been unsold by the trustees, creditor, under such circumstances, exceeded it would have remained land, and the the purchaser's equity, and consequently no judgment would have attached upon it; acquisition of the legal estate by the pur- but it was all sold by the trustees and conchaser would protect him from such incum-verted into personalty, and the contingency brances. Tunstall v. Trappes, 3 Sim.286. which would have entitled the judgment And it has been decided, that the Statute creditor never took effect." Foster v. Blackof Frauds does not extend to equities of re-stone, 1 Myl. & K. 297; Lodge v. Lyseley, demption, or to any equitable property in 4 Sim. 75. which other persons besides the judgment debtor have any interest. Metcalf v. Scholey, 2 New Rep. 461; Doe v. Greenhill, 4 Barn. & Ald. 684; Harris v. Booker, 12 Moore, 283. [To be continued. ] PRACTICAL POINTS OF GENERAL RESTRAINT OF TRADE. In connection with this part of the sub- WE have from time to time brought toject, it is to be observed, that property will not be bound in the hands of a purchaser gether the cases relating to an important by judgments obtained against the vendor point of frequent occurrence, how far trade after he has entered into a binding contract in 15 L. O. 211, we adverted to the immay be restrained, see 14 L. O. 106; and for sale. In Lodge v. Lyseley, 4 Sim. 75, Sir L. Shadwell said, portant case of Hitchcock v. Coker, 1 N. & P. "It appears to me, 796; 6 Ad. & E. 438; in which it was that from the time H. A. S. entered into held, that a party can be restricted from binding contracts to sell his estates to pur- exercising his business in a particular place chasers, he not having judgment against for his life, notwithstanding the death of him at that time, the purchasers had a the other party with whom he covenants. right to file a bill against him, and have In the subsequent case of Leighton v. Wales, the legal estate conveyed; and if he had 3 Mee. & W. 545; 17 L. O. 85, Hitchcock subsequently confessed a judgment, that judgment never could have impeded the to restrain trade, unlimited in point of space, v. Coker, was fully supported. But a bond progress of the legal estate to them." Finch is void, however limited the time may be v. Earl of Winchelsea, 1 P. Wms. 282. in which it is to be enforced. Ward v. 214 66 Practical Points.- Chancery Reform. REFORM IN THE CHANCERY bill in one place, and issue a subpœna in another; an appearance must be entered at one office, and the answer sworn at another; and then the answer must be fetched away by the clerk in court, and filed: so an affidavit must be sworn at one office, and filed at another. Now if the Six Clerks' Office were converted into a Chancery Record Office, it would be very convenient to have subpanas issued, and affidavits sworn and filed at the same place. The present Six Clerk's Office is large enough, and might easily be adapted for these purposes. Byrne, 5 Mee. & W. 645; 20 L. O. 66. miles of Northampton Square, is also an This last case was acted on in Hinde v. Gray, exclusion that is larger than is warranted 1 Man. & Gr. 196; 1 Scott, N. R. 123. or necessary for the fair and legitimate In the latest case on the subject, the plain-protection of the plaintiff." Procter v. tiff, a cow-keeper and milkman, agreed to Sargent, 2 Scott, N. S. 289; 2 Man & keep and retain the defendant in his ser- Gr. 20, S. C. vice for one month certain, and until the expiration of a months' notice, to be given by either party to the other of them in writing, of his or their intention to determine such contract and service; in conideration whereof the defendant agreed to serve the AMONGST the reforms which should be plaintiff, and that he would not, during the effected in the Chancery Offices for the continuance of such service, nor within dispatch of business and the convenience twenty-four calendar months after quitting of the practitioners, are the following:or being discharged from the same, com1. The Offices should be concentrated, or mence, carry on, or be concerned in any brought as near to each other as practicable. way whatsoever, either as servant or master, They are now scattered in various parts. in the trade or business of a cow-keeper Taking them in the order of the proceedand milkman, within five miles of North-ings in a suit, the solicitor has to file his ampton Square, under a certain penalty; and it was held, that this contract did not operate in restraint of trade to such a degree as to render it void. "The general policy of the law," said Mr. Justice Maule, undoubtedly is, that trade shall be encouraged, and contracts or agreements having for their object the restraint of trade, shall be discouraged; though, if the question were res integra, I strongly incline to doubt whether the interests of commerce be really promoted by the prohibition of such contracts. Many persons who are well informed upon the subject, entertain an opinion that the public would be better served, if by permitting restrictions of this sort, encouragement were held out to individuals to embark large capitals in trade; and that it would be expedient to allow parties to enter into any description of contract for that purpose that they might find convenient. However, the law is well established that all contracts in general restraint of trade are illegal. But it is also a part of the law that such contracts are valid, provided the restraint they impose is limited. It is said, that when the limitation is only colourable, or unreasonable, it falls within the general rule, and not within the exception. In Horner v. Graves, 7 Bing. 735, the Court clearly saw that the limit was colour-proper. able, and the restraint unreasonable. But 2 o'clock :it certainly does not follow, that because the Court thus held the exclusion of the defendant from the exercise of the profession of a dentist within a distance of one hundred miles from York, to be not necessary for the fair protection of the plaintiff, we must, therefore hold, that the exclusion of the present defendant from the exercise of his business as a cow keeper within five Ultimately, all the other offices should be consolidated in one building: the Masters and the Examiners, with the Registrars and Accountant General. 2. As to the Hours of Attendance :— These hours seem to be reasonable and : The Accountant General's Office. The Report Office. It is said that these offices re-open in the evening; but from the change in the habit of transacting business, the attendance in the evening is useless. 3. Then as to the Holidays, it is evident that there should be some uniform regula |