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New Statutes effecting Alterations in the Law.

to vest the freehold interest in the grantee or grantees thereof without any surrender or admittance or enrolment in the Lord's Court, but the fees (if any) payable by the custom of the manor upon enfranchisement shall be paid to the steward.

16. Where any land shall be sold by any ecclesiastical corporation sole for the purpose of this Act, and the purchase-money to be paid shall not exceed the sum of 201., the same may be retained by the party conveying for his own benefit, but when it shall exceed the sum of 201. it shall be applied for the benefit of the said corporation in such manner as the bishop in whose diocese such land shall be situated shall, by writing under his hand, to be registered in the registry of his diocese, direct and appoint; but no person purchasing such land for the purpose aforesaid shall be required to see to the due application of any such purchase-money.

17. In cases not otherwise provided for in this Act, the clauses 69, 70, 71, 72, 73, 74, and 78 of the Lands' Clauses' Consolidation Act, 1845, being the 8 & 9 Vict. c. 18, shall apply in respect of the application of the purchasemoney of all sites purchased from incapacitated persons, corporations, and trustees hereby empowered to sell, other than the Chancellor and Council of the Duchy of Lancaster and the officers of the Duchy of Cornwall.

gage or sell the same, or part thereof, free from the trust of the institution, and apply the amount obtained by such mortgage or sale to their reimbursement, and the balance (if any) to the benefit of the institution, subject to the restrictions herein before contained with regard to lands given and lands belonging to the duchies aforesaid.

20. Where any institution shall be incorporated, and have no provision applicable to the personal property of such institution, and in all cases where the institution shall not be incorporated, the money, securities for money, goods, chattels, and personal effects, belonging to the said institution, and not vested in trustees, shall be deemed to be vested for the time being in the governing body of such institution, and in all proceedings, civil and criminal, may be described as the moneys, securities, goods, chattels, and effects of the governing body of such institution by their proper title.

21. Any institution incorporated which shall not be entitled to sue and be sued by any corporate name, and every institution not incorpo porated, may sue or be sued in the name of the president, chairman, principal secretary, or clerk, as shall be determined by the rules and regulations of the institution, and, in default of such determination, in the name of such person as shall be appointed by the governing 18. If it shall be deemed advisable to sell body for the occasion; provided, that it shall any land or building not previously part of the be competent for any person having a claim or possessions of the Duchy of Lancaster or Corn-demand against the institution to sue the prewall held in trust for any institution, or to ex-sident or chairman thereof, if, on application change the same for any other site, the trustees to the governing body, some other officer or in whom the legal estates in the said land or person be not nominated to be the defendant. building shall be vested may, by the direction or with the consent of the governing body of the said institution, if any such there be, sell the said land or building, or part thereof, or exchange the same for other land or building suitable to the purposes of their trust, and receive on any exchange any sum of money by way of effecting an equality, and apply the money arising from such sale or given on such exchange in the purchase of another site, or in 23. If a judgment shall be recovered against the improvement of other premises used or to the person or officer named on behalf of the be used for the purposes of such trust; and institution, such judgment shall not be put in such trustees may, with like direction or con- force against the goods, chattels, or lands, or sent, let portions of the premises belonging to against the body of such person or officer, but the institution not required for the purposes against the property of the institution, and a thereof, for such term, and under such cove-writ of revivor shall be issued setting forth nants or agreements, as shall be deemed by the judgment recovered, the fact of the party such governing body to be expedient, and against whom it shall have been recovered havapply the rents thereof to the benefit of the institution.

22. No suit or proceeding in any civil Court shall abate or discontinue by reason of the person by or against whom such suit or proceedings shall have been brought or continued, dying or ceasing to fill the character in the name whereof he shall have sued or been sued, but the same suit or proceeding shall be continued in the name of or against the successor of such person.

ing sued, or having been sued, as the case may be, on behalf of the institution only, and requiring to have the judgment enforced against the property of the institution only, and requir ing to have the judgment enforced against the property of the institution.

19. The trustees of such institution who, by reason of their being the legal owner of the building or premises, shall become liable to the payment of any rate, tax, charge, costs, or expenses, shall be indemnified and kept harm- 24. In any institution the govering body, if less by the governing body thereof from the not otherwise legally empowered to do so, may, same, and in default of such indemnity shall at any meeting specially convened according be entitled to hold the said building or pre- to its regulations, made any byelaw for the mises and other property vested in them as a better governance of the institution, its memsecurity for their reimbursement and indemni-bers or officers, and for the furtherance of its fication, and, if necessity shall arise, may mort-purpose and object, and may impose a reason

New Statutes effecting Alterations in the Law.


able pecuniary penalty for the breach thereof, that the proposition so carried is calculated to which penalty, when accrued, may be recovered prove injurious to the institution, they may, in any local Court of the district wherein the within three months after the confirmation defendant shall inhabit or the institution shall thereof, make application in writing to the be situated, as the governing body thereof shall Lords of the Committee of her Majesty's deem expedient: provided always, that no pe- Privy Council for Trade and Foreign Plantacuniary penalty imposed by any byelaw for tions, who, at their discretion, shall entertain the breach thereof shall be recoverable unless the application, and if, after due inquiry, they the byelaw shall have been confirmed by the shall decide that the proposition is then calcuvotes of three-fifths of the members present at lated to proved injurious to the institution, the a meeting specially convened for the purpose. same shall not be then carried into effect; but 25. Any member who may be in arrear of such decision shall not prevent the members his subscription according to the rules of the of such institution from reconsidering the institution, or may be or shall possess himself same proposition on a future occasion. of or detain any property of the institution in a manner or for a time contrary to such rules, or shall injure or destroy the property of the institution, may be sued in the manner hereinbefore provided; but if the defendant shall be successful in any action or other proceeding at the instance of the institution, and shall be adjudged to recover his costs, he may elect to proceed to recover the same from the officer in whose name the suit shall be brought, or from the institution, and in the latter case shall have process against the property of the said institution in the manner above described.

29. Any number not less than three-fifths of the members of any institution may determine that it shall be dissolved, and thereupon it shall be dissolved forthwith, or at the time then agreed upon, and all necessary steps shall be taken for the disposal and settlement of the property of the institution, its claims and liabilities, according to the rules of the said institution applicable thereto, if any, and if not, then as the governing body shall find expedient; provided, that in the event of any dispute arising among the said governing body or the members of the institution the adjustment of 26. Any member of the institution who shall its affairs shall be referred to the Judge of the steal, purloin, or embezzle the money, securities County Court of the district in which the for money, goods, and chattels of the institu- principal building of the institution shall be tion, or wilfully and maliciously, or wilfully situated, and he shall make such order or and unlawfully, destroy or injure the property orders in the matter as he shall deem requisite, of such institution, or shall forge any deed, or, if he find it necessary, shall direct that bond, security for money, receipt, or other in-proceedings shall be taken in the Court of strument, whereby the funds of the institution Chancery for the adjustment of the affairs of may be exposed to loss, shall be subject to the the institution. same prosecution, and if convicted shall be liable to be punished in like manner, as any person not a member would be subject and liable to in respect of the like offence.

27. Whenever it shall appear to the governing body of any institution (not having a royal charter, nor established by nor acting under any Act of Parliament), which has been established for any particular purpose or purposes, that it is advisable to alter, extend, or abridge such purpose, or to amalgamate such institution, either wholly or partially, with any other institution or institutions, such governing body may submit the proposition to their members in a written or printed report, and may convene a special meeting for the consideration thereof according to the regulations of the institution; but no such proposition shall be carried into effect unless such report shall have been delivered or sent by post to every member ten days previous to the special meeting convened by the governing body for the consideration thereof, nor unless such proposition shall have been agreed to by the votes of three-fifths of the members present at such meeting, and confirmed by the votes of threefifths of the members present at a second special meeting convened by the governing body at an interval of one month after the former meeting.

28. If any members of the institution, being no less than two-fifths in number, consider

30. If upon the dissolution of any institution there shall remain, after the satisfaction of all its debts and liabilities, any property whatsoever, the same shall not be paid to or distributed among the members of the said institution or any of them, but shall be given to some other institution, to be determined by the members at the time of the dissolution, or in default thereof by the Judge of the County Court aforesaid; provided, however, that this clause shall not apply to any institution which shall have been founded or established by the contributions of shareholders in the nature of a joint-stock company.

31. For the purposes of this Act, a member of an institution shall be a person who, having been admitted therein according to the rules and regulations thereof, shall have paid a subscription, or shall have signed the roll or list of members thereof; but in all proceedings under this Act no person shall be entitled to vote or be counted as a member whose current subscription shall be in arrear at the time.

32. The governing body of the institution shall be the council, directors, committee, or other body to whom by Act of Parliament, charter, or the rules and regulations of the institution, the management of its affairs is entrusted; and if no such body shall have been constituted on the establishment of the institution, it shall be competent for the members thereof, upon due notice, to create for itself a

30 New Statutes.-Review: Francis' Common Law Procedure Acts, 1852 and 1854.

governing body to act for the institution not be expected to be acquainted more than thenceforth. 33. The Act shall apply to every institution Acts of Parliament. superficially with the provisions of modern His duty is to infor the time being established for the promotion of science, literature, the fine arts, for adult terpret them (according to well-known instruction, the diffusion of useful knowledge, rules) when they are placed before him, the foundation or maintenance of libraries or but it is impossible for him to remember reading rooms for general use among the mem- their exact phraseology so as to give a safe bers or open to the public, of public museums off-hand opinion on their provisions. It and galleries of paintings and other works of need scarcely, therefore, be added how art, collections of natural history, mechanical much the Profession are indebted to genand philosophical inventions, instruments, or tlemen who will place this multifarious designs; provided, that the Royal Institution, and the London Institution for the advance legislation in an accessible shape before ment of literature and the diffusion of useful them. In fact, editions of the more imknowledge, shall be exempt from the operation

of this Act.

34. The term "parish" shall signify herein any place separately maintaining its own poor. 35. In all deeds, documents, proceedings, suits, and prosecutions, this Act may be cited and described by the name of "The Literary

and Scientific Institution Act, 1854."


portant modern Statutes have become a necessity in the law. We will proceed to examine how far Mr. Francis has discharged the task which he has for the second time undertaken.

tendering our entire adhesion to his prefaIn the first place, we cannot forbear tory remarks upon the manipulations which the Act of 1854 underwent in its progress through Parliament. If a Bill be introduced to the Legislature affecting the The Common Law Procedure under the liberties of the subject, the rights of the Procedure Acts of 1852 and 1854, and Crown, or the privileges of Parliament, it is the New Rules on Practice and Pleading good that its every section should undergo With Forms, Tables of Fees, Costs, &c. the scrutiny of each country gentleman in To which are added an Introduction to the house. But when a Bill has for its the Equitable Jurisdiction of Courts of object the amendment of procedure and Law, the Evidence Amendment Statutes, practice in the Courts, a matter peculiarly and copious Index. By PHILIP FRANCIS, technical and unavoidably so, it really is Esq., of the Middle Temple, Barrister-at- disheartening to find that its provisions are Law. London: William Maxwell. 1854. liable to be altered (or as courtesy denomiMR. FRANCIS, who last year gave evi- nates it, "amended") by persons who dence of his industry in editing the "Cha- never conducted a suit or made up a record, ritable Trusts' Act," has again come before and who know just enough about special the Profession with a volume of 380 pages, pleading to be aware that it is not someinto which he has compressed,-1st. The thing to eat. Even Select Committees of Common Law Procedure Act, 1852. 2nd. law members are not to be depended upon, The Practice and Pleading rules founded they are often too apt to sew purple thereon. 3rd. The Common Law Procedure Act, 1854. 4th. The Evidence Amendment Acts of 1851 and 1853. And to these he has appended all the cases decided upon those Statutes and Rules down to the present time. We have thus a complete codification of Common Law procedure and practice as it now exists; the authorities are ready to our hands, and a copious index at once enables us to refer with expedition to any one of the subjects treated of to which our practice may require a resort. fully collated. In addition to this, Mr. Francis has given a clauses and rules which have been revery lucid introductory chapter on the enacted merely, Mr. Francis has not equitable jurisdiction of Courts of Law under the Procedure Act, 1854.

The mass of legislation has of late years become so enormous that it is now perfectly well recognised that a lawyer must

patches on to white garments. In fact, the proper course would be, to pass such Bills framed by such Commissions as the present almost as of course: they can be amended at any time, and then will come the time for Select Committees.

We need not dwell upon the annotations of the Act of 1852, or to the practice and pleading rules founded thereon, except to remark that all the judicial decisions subsequent to their enactment have been careSuch cases as illustrate

thought it a necessary part of his duty to recapitulate at any length,-they are to be found in books of practice already in use. We propose to confine our notice to the Act of 1854, and to the Editor's introductory

Review: Francis' Common Law Procedure Acts, 1852 and 1854.


chapter and notes thereon. We may, how-mon Law, which Mr. Francis sums up as ever, in passing, regret that he has not follows:

found time to annex more notes to the "The equitable effect of this power so given clauses relating to ejectment in the Act of to Courts of Law seems to amount to this, that 1852, but his excuse would probably be, while hitherto it was in the option of any party that many of these sections are re-enact- to a contract to elect, so far as the control of ments merely of the old law which it was Courts of Common Law extended, whether he not the object of his book to elucidate. would perform his contract or pay a sum of Mr. Francis then, in his introductory money as damages, it is now left to the party chapter, seems to apprehend that several against whom the breach is committed, to elect between enforcing the contract or accepting as questions will arise in respect of the nature a substitute money damages, and subject to the and extent of the new equitable jurisdiction. opinion of the Court, that the latter was not a By way of smoothing our way, he sets be- perfect compensation, specific performance may fore us our great Commentators' remarks be enforced." on the jurisdiction of Courts of Law and With this we agree, except that we see Equity respectively, and proceeds to show nothing in the Act to disable the Court that the intent of the framers of the Act from granting a mandamus and also awardwas not so much to supersede Courts of ing damages for any delay in performing Equity as to remove the necessity of ap- the duty. It must be remembered that the pealing to those Courts, in cases where Court will always have a discretion in grantequity had been wont to interfere, in order ing a mandamus; this will obviate the into remedy the imperfections of Common convenience suggested in the notes that a Law. Now this is the keystone to the whole defendant in breach of promise may (as understanding of the Act. Let the reader some would have it) be liable not only to bear well in mind, that it was to enable the pay damages, but also may be ordered to Court of Law to finish its work, by estamarry the plaintiff, and thus have to elect blishing the suitor's right in all its require- between the attachment of the Court and ments, that the new enactments were that of the lady; or, what would be still framed-they were not framed to supersede more shocking to the sensitive feelings of Equity. Thus, in the well-known case of the injured dame, some aspiring usher, Soltau v. De Held, the plaintiff recovered associate, or briefless barrister might be damages against the defendant for ringing ordered to espouse her by virtue of the bells to such extent as to become a nuisance, power of the Court to order the act to be and afterwards had to resort to a Court of done by some other person appointed by Equity to restrain future excessive bell the Court, at the expense of the defendringing. As far as the Common Law Court ant: in either case probably violating the went, Mr. De Held might have gone on rule "Consensus, non concubitus, facit maperpetually chiming, subject to the payment trimonium !” of damages, if he did not mind paying for the pleasure; but now the same Court which awards damages, can likewise, in the same suit, prevent a repetition of the offence. So, likewise, if waste be committed, the injured party may, in the same suit, obtain damages for the wrong already done and afterwards against its repetition.

In order to entitle a plaintiff to a mandamus, Mr. Francis considers that the duty of which performance is to be compelled must mean a legal duty. By this we understand him to mean legal as distinguished from equitable duty. It cannot be supposed that the more restricted sense of "duty" can have been intended; for, if so, no manMr. Francis then gives us a summary damus could be obtained unless an action of the subjects over which equity has a on the case for a tort would also lie. It jurisdiction-a concise statement of the must mean "any obligation for breach of grounds on which discovery may now be which an action at law for damages is mainobtained, and on which it probably may tainable." A jurisdiction to this extent must be resisted in the Courts of Common Law be very salutary if controlled by the discre-and here we may notice those on a tion of the Court, which discretion, we consummons heard on the first of the present tend, is clearly conferred by section 68. month. Mr. Justice Crompton, after con- In section 69 we find that a mandamus will sulting Mr. Baron Martin, refused to lie "quia timet," for a plaintiff may claim allow interrogatories, framed with view of a mandamus on the ground that "he may discovering the opposite parties' case sustain damage." We regret that injunconly. Our attention is next called to pro- tions "quia timet" cannot also be obtained. ceedings for specific performance at Com

Before we quit the subject of mandamus,


Review: Francis' Procedure Acts.-Forfeiture of Leaseholds-Law of Ejectment.

we may observe that we can imagine a case We are glad to see the custom of London in which this remedy will be attended with as to foreign attachments made universalsome considerable difficulty in a Court of we have heard it denominated a barbarous Law, unless proper machinery be introduced remedy. It certainly has some of the reto meet it. Suppose a mandamus for spe- commendations of barbarism, viz., simplicity cific performance of an agreement to convey and natural equity.

real property-there being a dispute about the title-the plaintiff would declare for breach of the agreement, the defendant would then either traverse the breach in terms, in which case the whole intricacies would have to come before a jury in evidence, or he would set out the title he was prepared to give on the face of the record, in which latter case the pleadings would 'be enormous. There seems therefore to be a necessity for the establishment of some preliminary tribunal before which the title may be sifted, and the substantial point alone submitted to the jury or the Court, as the case may be :-in a word, there must be some machinery erected analagous to that of the Masters' Office. Section 78, as to the specific delivery of chattels, is most valuable, for there are cases in which no money payment could compensate for nondelivery of chattels,-e. g. family pictures, jewels, and the like.



To the Editor of the Legal Observer. SIR,-I quite agree with the observations of W. and S. C., at page 341 of your last Volume, and have long thought the Law of Ejectment connected with breaches of covenant requires the interference of the Legislature. Leaseholds are the subject of extensive sale, and how many purchases are completed in which breaches of covenant appear, the vendors protecting themselves by the production of the last receipt for rent. I think public policy (notwithstanding the covenants entered into between lessor and lessee) demands an alteration in the law giving all equitable means of relief, in order that this class of property may safely be the subject of sale; for few holders of leaseholds are aware

of the serious consequences of breaches of covenant, they merely viewing the property as a kind of commodity to be bought and sold any other.


As regards the covenant to insure, if the property be insured according to covenant, it ought to be considered a performance, notwithstanding previous breaches; and in case of ejectment by reason of the covenant not being complied with by insuring in the required joint names or otherwise, the tenant should be at

Injunctions are next treated of. We are reminded of the defect just adverted to, that injunctions quia timet" cannot be obtained, except in equity; and it appears that in no case can injunctions be obtained, except by a plaintiff in an action. We see no good reason why they should not also be awarded in favour of a defendant in ejectment to which action, the new equitable defences do not seem to be applicable. We have been led to greater length than we intended by the novelty and interest of our subject. We must, however, especially refer our readers to Mr. Francis' remarks and liberty to stay proceedings on setting the policy notes on 66 equitable defences," just quoting right and paying costs. In case of ejectment his opinion that "the intent of the 83rd for breach of the covenant to repair, the tenant section is, that whenever relief in equity ought to be at liberty to stay proceedings on would be granted to either party by in repairing within a reasonable time;-if for junction perpetual or conditional to stay nonpayment of rent, taxes, &c., by paying the proceedings at law, the same grounds amount;-if for carrying on a prohibited trade, shall afford a defence in Courts of Law," by discontinuing the trade and restoring the but we must receive this, subject to the premises, and in like manner for other single exception of ejectment. Equitable breaches; because the remedy by ejectment defences must be pleaded, and there are no for breach of covenant ought not to be a repleadings in ejectment.

We have not time at present to do more medy enabling a landlord (perhaps having a than refer generally to Mr. Francis' notes on the arbitration clauses-those relating to trial of facts by a Judge alone, and the order of address to the jury (on this latter subject he has a very elaborate note)-the evidence of witnesses and interrogatories.

very small pecuniary interest in the property) to enrich himself at the expense of the tenant, who, through some unintentional neglect or oversight, has broken the strict letter of the covenant, without giving him an opportunty of remedying it.

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