creditors, coming in subsequently to the payment of a dividend, should be entitled to a dividend, not disturbing any dividend previously paid? LEX. No. 35.-Will-Feme covert.-Does the will of a feme covert, made with the consent of her husband, pass property acquired by her after her husband's death? T. DALLOW. No. 36.-Execution-Breaking open doors.-Where a sheriff's officer breaks open the outer door of a dwelling house to enable him to seize goods, can the execution be set aside? and would the case be the same with regard to landlord distraining? T. DALLOW. TRANSFERS OF MORTGAGES. THE text books inform us that it is dangerous to take a transfer of a mortgage without the concurrence of the mortgagor (2 Davidson's Preced., 692, 2nd edit.); but it is well known that in practice such transfers are common, it being frequently impossible to obtain the concurrence of the mortgagor, either from his being dead, without any existing known representative, or his being abroad, or the equity of redemption being thought to be worthless, &c. It should be borne in mind that, when a transfer is taken without the mortgagor joining, it is the duty of the solicitor of the transferee to give notice thereof to the mortgagor or his representatives; and, further, that if they be unknown, it may form an insuperable objection to taking such a transfer, by reason of the impossibility of giving notice to them. It seems strange that, as the transferee gets the legal estate from his transferor, he should be under the necessity of giving notice to the mortgagor, more especially as it is wellsettled that, in taking mortgages of real estate, the doctrine of notice has no application (Dearle v. Hall, 3 Russ., 1; Foster v. Blackstone, 1 M. and K., 297; 2 Davids. Conv., 489, 2nd ed.). We leave it, therefore, as a moot point for discussion among our subscribers, as to the principle upon which notice is requisite of a transfer of a security, though none is requsite in its inception. We may here allude to a recent decision of the Master of the Rolls, determining that where a mortgage is invalid in its inception, though the matter causing the invalidity be extraneous, and not apparent on the face of the security, such as its having been obtained by fraudulent pretence, a transferee of such mortgage, though he took without notice of the fraud, and though he gave valuable consideration, and pleaded that he was a purchaser for value without notice, was held to be in no better position than the mortgagee, and he was not, therefore, allowed his advance, but was ordered to deliver up to the mortgagor the mortgage deed, which had been deposited with him by the mortgagee (Parker v. Clarke, 9 Week. Rep., 878). NOTICES TO CORRESPONDENTS. LEX. The practice of Conveyancers as to Lord Cranworth's Trustees' and Mortgages' Act is not quite uniform, but, with few exceptions, the operation of the statute is negatived, so that it will become almost inoperative, though not so completely as Lord Brougham's Act, the existence of which may be said to be almost entirely ignored by conveyancers. If you really have mastered Burton you have done more than most students, the generality of whom find the work too abstruse, and so uninviting that they seldom persevere beyond the first dozen pages. M. A.-The third volume of Davidson's Conveyancing, 2nd edit., has just been published in two distinct parts, price £2 10s. It is still doubtful whether Mr. Sweet's edition of Jarman's Conveyancing will ever be completed, though we are assured it has not been abandoned. X.-Unless you do some copying we cannot see how you are to become acquainted with the mechanical portion of the profession. You may read precedents for a very long time before you will become au fait at the usual style and expression of deeds and other documents. It requires much acquaintance with the usual clauses in wills and deeds to enable a person to become a good draftsman. Pupils for the bar usually make copies of the principal drafts prepared in chambers, not merely for future reference, but to familiarise themselves with the mode of framing the usual provisions in deeds and wills. It will be not only wise but indispensable that you should do the copying required, giving your best attention to the provisions of the documents. F. T. The lectures at the Incorporated Law Society will recommence in the present month. We cannot recommend them for utility, as, in our opinion, very little, if anything, can be learnt from oral lectures unaccompanied by explanations and examinations, though, probably, the preferable course would be for the "Lecturer" to talk to his audience in a familiar manner, and ascertain what they do, and what they do not already understand, and then to supply the required information. This would give the auditors the benefit of the Lecturer's mind, which, by the present procedure, they can scarcely be said to have. T. L-It is impossible for us to give the "experiences" of articled clerks, unless they will furnish us with them, and we are sorry to find that there is great difficulty in procuring such communications, but we trust that when our subscribers pass through the ordeal they will be less selfish, and furnish us with their "experiences." M. R.-The "Doctor and Student" is a very old and curious work, and the perusal of it would be beneficial to any one who does not object to some obsolete law and curious disquisitions. The last edition is that of 1815, by Mr. Muchall. SUMMARY. RULE AGAINST PERPETUITIES.-Gift to a class, good as to some members of the class and bad as to the rest-Ascertainment within the period allowed by law. The following decision of the Master of the Rolls, as to the rule against perpetuities, is deserving of attention, his honour deciding, first, that where there is a gift to a class of persons, some of whom are within the limits allowed by law, and others not within such limits, as the class cannot be ascertained until the period allowed by law has elapsed, the whole gift is void; but, secondly, following the 5th rule in Cattlin v. Brown (11 Hare, 372), that where the gift is of a given sum to each member of such a class, and the gift to each is wholly independent of a similar gift to every other member of the class, and cannot be affected by the fact of the others receiving their legacies or not, the gift is good as to those who can take within the limits required by law. Appointment (under a power) of the capital of a trust fund upon trust for the benefit of the children of the donee of the power, in the manner thereinafter mentioned, viz., to pay £2,000 to each of the daughters, as and when they attained twenty-four years; and as to the residue of such capital to divide the same between his sons equally, if more than one, as and when they respectively attained twenty-one years. Held that the appointment was good as to those of the daughters who would attain twenty-four within twenty-one years after the death of the donee, but bad as to the sons and the other daughters of the donee (Wilson v. Duncan, 9 Week. Rep., 915). VENDOR AND PURCHASER.-Agreement for lease-Specific per formance-Surprise-Concealment-Inadequacy of consideration.Though it is established that Courts of Equity have a discretion to grant or refuse specific performance, this is not an unlimited discretion, the judges being bound by the rules which their predecessors have laid down, founded on justice and expediency. In the following case, which was a suit for the specific performance of an agreement for a lease of certain clay, sand, and other substances, of which the defendant had recently become the owner, it was alleged by the defendant that there had been misrepresentation and concealment as to value. It was held that the bill could not be sustained on that ground, but, as there was evidence that the defendant had been taken by surprise, and had been induced by the plaintiff to sign the agreement in ignorance of the value of his property, and upon the representation that the defendant would make a fair allowance, should the property turn out more valuable, the bill was dismissed. There being no fiduciary relation between a vendor and purchaser in a negociation, the purchaser is not bound to disclose any fact exclusively within his knowledge, which would influence the price of the subject sold. Simple reticence does not amount to legal fraud, but if a purchaser, in any manner, induces a vendor to believe the existence of a non-existing fact which might influence the price of the subject contracted to be sold, the contract cannot be supported (Walters v. Morgan, 4 Law Tim. Rep., 758). MOOT POINTS. No. 37. Lapsed legacy.-A, by his will, devises an estate to B, subject to the payment of a sum of money to C. C dies in the lifetime of the testator. The will contains no residuary devise. Would the legacy lapse in favour of B, or the heir of the testator? THOMAS DALLOW. No. 38. Executors.-Where there are two executors, and only one proves and dies, leaving his co-executor surviving, who dies without renouncing or proving, but appointing executors, would the representation cease, or would the surviving, but not proving, executor represent the original testator? G. R. K. No.39. Devise of Copyholds.-I find, in "Chambers's Encyclopædia," title "Devise," the following: "In order to an effectual devise of land under the statutes of Henry VIII. it was necessary that there should be a will in writing, while a verbal or nuncupative will would carry land by custom. By 29 Chas. II. c. 3, the Statute of Frauds, this distinction was removed, and it was enacted that a will in writing, attested by three or four witnesses, should be necessary for the conveyance of all lands." I doubt whether by "land by custom" is meant copyholds, but, whether this be so or not, surely the latter part of the quotation is wrong, as until the 1 Vic., c. 26, copyholds passed by an unattested will. I may mention that most of the legal articles in the above work contain errors, some of a very gross KENT. nature. CORRESPONDENCE ON MOOT POINTS.-The following are the only additions to the previous lists, viz., Mr. W. G. Brighten, Bishop's Office, The Close, Norwich; Mr. G. J. Brocklesby, No. 14, Williamstreet, Camden-road, N.; Mr. C. Bourne, No. 21, Monk's-road, Lincoln. |