314

ANSWERS TO MOOT POINTS.

We are continually receiving communications complaining of the too great space (as it is alleged) allotted in the Magazine for Answers to Moot Points, and certainly, looking at the comparatively few who send Answers, we feel there is some ground for the complaint. As far as we are concerned, we are rather disposed to admit than to reject Answers, but we as find there are those who object to so many Answers, we must, for the future, be more strict than heretofore; but we trust it will be understood that we have no desire to altogether prevent those of our subscribers, who may be so inclined, from answering the Moot Points. We will only request attention to the following regulations, which we think it desirable should be borne in mind.

1. Every Answer should (where possible) contain a reference to some authority, and, generally speaking, this should be a decided case, or some good text-book treating the subject in detail. We think gentlemen who answer the Moot Points should show that they have read other works than Blackstone's Commentaries, or other similar elementary works, most of which it may reasonably be supposed that the Mooters have consulted before submitting their queries.

2. A little compression would be desirable, but not to the extent of merely giving a "Yes" or "No" answer.

3. We could wish that no answer should be sent for insertion until some correspondence had taken place with the Mooters, or other parties, whose names are in the published List of Correspondents. We are satisfied that much of the complaint which reaches us, as to the number and quality of the answers, would cease, if these matters were to receive attention; and we have no doubt whatever that such correspondence would tend much to the mutual improvement of the parties engaging in it. Ours is rather an unpleasant position in this matter, because our motives may be misunderstood, but we must ask our writing and non-writing subscribers to exercise a little mutual forbearance, and to give us credit for a desire to please both parties, as far as that is possible.

Since the above was written we have received a communication from which we present some extracts; this we do in order that it may be seen that there are some who complain. Some portions of the communication, which might be considered personal, we have struck out.

"I regret that you devote so much space in your Magazine for the insertion of Moot Points and Answers; they occupy nearly eighteen

pages, or about one-third of this month's Number.

so very many of its pages.

I am confident that many of your Subscribers think that your Magazine might contain matter far more useful and authoritative. I can assure you that two out of three of the articled clerks in this town, who, two or three years ago subscribed to your Magazine, ceased doing so solely on account of their objecting to the insertion of so many Moot Points and Answers, and that the third countermanded your Magazine because you allowed Mr. --) a former subscriber, to occupy I presume your wish is to make the Magazine useful as a Book of Reference; I submit, with due deference, that few of your subscribers can safely place any confidence in the Answers to the Moot Points; I have noticed many of them evidently incorrect. I must say that I expected you would have finished the Questions and Answers on the New Equity Practice in your present number [they are complete.-EDs.]. I have found them and your Questions on the Common Law Practice, and your Letters on Conveyancing and Simple Contracts most useful. I am sure that many of your subscribers feel grateful to you for inserting them, and that they will afford many of them much assistance in studying for the examination."

We are always glad of a "hint" as to anything which may not be generally pleasing, as we feel that our subscribers ought to be good judges of what is suitable to them. We see that we must adopt some more stringent rule as to the Answers to the Moot Points. As to the Moot Points, we do not think the space they occupy can be grudged, particularly as our readers ought to exercise themselves in endeavouring to answer them. But as to the Answers thereto, we think, on further consideration, we must lay down this additional rule for our guidance, namely, not to admit, in any case, more than three answers, and, where the point is of no great importance or novelty, only two. In fact, we will first insert one, and then if it can be shown that that answer is not correct we will admit a communication containing strictures on it, and afterwards, if fairly called for, one short communication, by way of reply. We are not at all desirous to stop the insertion of Answers but only to give satisfaction to as many as possible of our Subscribers.-EDS.

.

No. 59.-Attorney's Lien for Costs (ante, p. 229).

B.'s lien upon his client's deeds and papers is good for the general balance of his account. (See Stevenson v. Blakelock, 1 M. and S. 5.35). X. Y. Z.

No. 51.-Law of Evidence-Proof of Post-marks (ante, p. 227). The post-office mark upon a letter is deemed prima facie evidence that the letter has passed through the post-office; but in order to

prove its genuineness, a clerk of the post-office may be called, or any person who has been in the habit of receiving letters with the post-office mark stamped thereon, and who would be able to speak with certainty, of the post-mark of the particular office. See Taylor on Evidence, p. 942. SAMUEL TURNER (Mansfield).

No. 42.-Devise over if die before becoming entitled (ante, p. 224).

I entertain a strong opinion that the testator intended by his will, that his sister-in-law should become entitled to her share of the trust moneys and premises upon the death of his widow.

The widow being the survivor, I conceive that the interest of testator's sister-in-law did not become vested in her, and that consequently A. alone is entitled to the property devised and bequeathed by the will. T. H. SHACKLOCK.

No. 52.-Trust Estate-Mortgage Deed (ante, p. 227).

I think it would be unadvisable to allow the trust to appear on the face of the mortgage deed, for I conceive that notwithstanding any declaration that might be framed, as to the application of the purchase money under the trusts of the mortgage deed, it would of necessity involve the trusts contained in the will, and in the absence of any express authority in the testator's will to the trustee to give receipts, &c., purchasers under the powers of sale contained in the mortgage security would be liable to see that the provisions of the will were complied with, as to the application of the money.

If there be circumstances by which it is deemed advisable that the money should appear to have been advanced by the trustee out of his trust funds, I should consider that the better plan would be to have a declaration of trust by deed poll to the effect required.

LEX.

No. 41.-Devise on attaining twenty-one (ante, p. 224). The word "respectively" in the decision Heathe v. Heathe, 2 Atk. 121, created a tenancy in common, and the present case may, I think, be considered in this respect somewhat analogous.

The deceased nephew's share became a vested interest immediately after the death of the testator, to take effect in possession on his attaining that age, and in case of his death before he attained that age his heirs would become entitled to the real estate, and his next of kin to his share of personalty.

See Doe v. Lea, 3 T. R. 43, and vol. ii. of Crabb's Conveyancer's Assistant, 2nd edit. p. 549. J. H. SHACKLOCK (Mansfield).

AN ANALYSIS OF PRESTON ON ESTATES.

[Continued from p. 278.]

Recovery of a rent in tail-Incorporeal hereditaments de novo-Statutes of Limitation-Rights of entry devisable and assignableQuantity and quality of estates-Determinable fees-Estates considered according to their various subdivisions Limitation of estates to heirs, &c.—Grant by a termor of his interest for lifeBequests by termor—Grant in fee by tenant for life-Grant or devise to a man and his executors-Bequest by termor to a man and his heirs male of his body-Leonard Lovie's case-Somerville v. Lethbridge.

If, on a grant of a rent for an estate in tail, a recovery was suffered by the grantee, what was its operation?

The recovery did not give an interest larger than the grantee had before; the grantee and his heirs had by the recovery an estate so long as there was issue inheritable under the entail (18).

NOTE. Mr. Preston refers to the case of Chaplin v. Chaplin (3 P. Will. 229), where L. C. Talbot is reported to have said, that if a rent de novo be granted in tail, without any remainder over, and the tenant in tail suffers a recovery thereof, this recovery, though it will turn the estate tail into a fee, yet the same will pass but a determinable fee, which must end on the death of the tenant in tail without issue, for the grantor never agreed to charge the land any further with the rent, and it would be a wrong to the terretenant to burthen his estate with the rent for any longer time. This subject

66

is further explained by Mr. Butler, in his Notes to Co. Litt. 298, n. 2, where he says, There is this difference between an entail of lands and an entail of rent, that the tenant in tail of lands, with the immediate reversion in fee in the donor, may by a common recovery bar the entail and the reversion; whereas the grantee in tail of a rent de novo, without a subsequent limitation of it in fee, acquires, by a common recovery, only a base fee, determinable upon his decease, and failure of the issues in tail; but if there is a limitation of it in fee, after the limitation in tail, the recovery of the tenant in tail gives him the fee simple. This was resolved in the cases of Smyth v. Farnaby, Carter 52; Sid. 285; and 2 Keb. 29, 55, 84; Weeks v. Peach, Lutw. 1224; and Chaplin v. Chaplin, 3 P. Will. 229; and see Lutw. 1218, 1224. The reason of this difference is, that it would be unjust that the conveyance of a

grantee of a rent should give a longer duration or existence to the rent than it had in its original creation. It is true that the barring of an estate tail in land is equally contrary to the intention of the grantor. But a rent differs materially from land. The old principles of the feudal law looked upon every modification of landed property, which was considered to be against common right, with a very jealous eye. Now, a rent charge was supposed to be against common right, the grantee of the rent charge being subject to no feudal services, and being a burthen upon the tenant who was to perform them. Upon this principle the law, in every instance, avoided giving, by implication, a continuation to the rent, beyond the period expressly fixed for its continuance. Thus, if a tenant in tail of land die without issue, his wife is entitled to dower for her life out of the land, notwithstanding the failure of the issue; but the widow of a tenant in tail of rent is not entitled to her dower against the donor. So, if a rent is granted to a man and his heirs generally, and he dies without an heir, the rent does not escheat, but sinks into the land. It is upon this principle that when there is not a limitation over in fee, a tenant in tail of rent acquires, by his recovery, no more than a base fee. But if there is a limitation in fee, after the particular limitation in tail, the grantor has substantially limited the rent in fee; and, therefore, it is doing him no injustice that the recovery should give the donee, who suffers it, an estate in fee simple."

Suppose the grant, in the preceding case, had limited remainders after the estate tail, what would have been the effect of the recovery?

In this case the estate tail would have been rendered co-extensive with the remainders limited by the grant (18).

NOTE. See the note to the preceding answer.

To what period is the origin of the estates or times for which incorporeal interests are held to be referred? and what is the effect of the extinguishment of the interest or subject?

The origin of the estates for which incorporeal interests are held is to be referred to the period at which they were created; that is, the period of their first commencement. When the interest or subject is extinguished, the estate for which it is held is also extinct as a necessary consequence; for nothing remains in which an estate may subsist (19).

NOTE. The point referred to is this: in the case of lands we have an always subsisting subject-matter, whereas in the case of incorporeal interests, at least in the generality of them, they cease with the estate limited therein. Thus, if a rent be granted in tail, if there be no issue, both the estate and the subject-matter cease: it is not a rent in the hands of the grantor; whereas if an estate tail in