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-Things recited or stated in deed-Showing sufficient title what.-The following is a decision at common law on the terms of conditions relative to recitals and statements in deed, showing that the recitals or statements must be of something alleged by way of direct recital or statement, and not mere inferences. Conditions properly drawn would provide for the latter. Where, by a contract for the sale of land, the land is described as "land tax redeemed," the vendor is bound to give reasonable evidence that the land tax has been redeemed, or that, if purchased, it is in his power to transfer or release it; and, · ordinarily, the proper evidence of this would be the certificate of the commissioners, or a copy of the register. In the case of such a contract, the 7th condition of sale was, that "every deed and entry on or copy of court roll, dated more than ten years ago, should be conclusive evidence of everything recited or stated therein;" and among the muniments of title was a conveyance by deed dated more than ten years back, from M. to H., from whom the property came by various mesne assignments to the present vendor, which deed, in the witnessing part of it, contained a statement as follows: "It is witnessed, &c., and in consideration of the sum of £290, &c., to the said M., &c., paid by the said H., &c., the receipt of which the said M. acknowledged, and that the same was in full for the absolute purchase" of the premises, "and the fee simple and inheritance thereof in possession, free from land tax and all other incumbrances:" Held, that this was not a statement of the fact, that the land tax had been redeemed, but only an acknowledgment by the then vendor, that the then purchaser had paid £290 for the land as being free of land tax and other incumbrances, and that it was consistent with such statement that the land tax had not been redeemed, or at least that it had been purchased and assigned to the then purchaser, or a trustee for him, in whom, or his representatives, it might now be vested. That the statement to bind the purchaser under the 7th condition ought to be something alleged by way of direct recital or similar statement in the deed, and not merely matter to be inferred as the probable, not certain, result of what was stated. Buchanan v. Poppleton, 31 Law Tim. Rep. 372.

MORTGAGE TO TRUSTEES.-Stock not discharged by paying money.—The following is an instance of the evils resulting from mortgage transactions disclosing trusts, either of the mortgage money or the estate, compelling the parties to look to the terms of the trusts:-Where a mortgage was made to secure a sum of stock, which was for the purpose sold by trustees who had power to give receipts for monies and power to vary securities, the mortgage was held, as between vendor and pur

chaser, not to be sufficiently discharged on payment of a sum of money to the trustees, the money not appearing to have been again invested in stock or upon security. Pell v. De Winton, 27 L. J. Ch. 230. COVENANT TO PRODUCE DEEDS.-Sale in lots-Costs-Petition-Payment out of court.—The following decision (by V. C. Stuart) is one quite contrary to the prevalent opinion of the profession, and one of peculiar hardship on a purchaser in regard to covenants for production of deeds on a sale in lots. The other point as to the costs of a purchaser served with a petition is in accordance with other decisions, though some earlier ones were the other way. Although, by the practice of conveyancers, the costs of covenants to produce title deeds which cannot be delivered up, fall on the vendors; yet where, by the conditions of sale in property in lots, provision is made for the largest purchaser to have the deeds, and to covenant to produce them to the purchaser of smaller lots, without reference to the manner in which the costs are to be paid, each purchaser, and not the vendor is bound to bear his own costs of such covenants. A purchaser is entitled to his costs of appearing upon a petition for paying his purchase money out of the court, although he is informed in the notice of the petition that he is not required to appear, and the petitioner will object to his costs of appearance. Stroud v. Stroud, 6 Week. Rep. 455.

COPYHOLD.-Enfranchisement Acts-Agreement to obtain enfranchisement-Reservation of mines and minerals.—The following is a most important decision as to contracts for the purchase of copyholds about to be enfranchised, inasmuch as it shows that the lord's title is not important, and that the purchaser may be precluded from making objection on the ground that the mines and minerals belong to the lord under the Enfranchisement Acts. It suggests the propriety of never entering into a contract refering to acts of Parliament or other documents without looking to their effect. The decision was that under the Copyhold Enfranchisement Act, 1852, a good title to the lands enfranchised may be made without any proof of the lord's title. Under an agreement made the 15th of June, 1853, whereby a copyholder agreed to sell a copyhold estate, and to make a good title to the land so enfranchised, with a proviso that the agreement should be void if the vendor failed to obtain enfranchisement: Held, that the agreement must be taken to have referred to the statutes, and that the purchaser was bound to accept a title subject to the reservation of minerals and other rights mentioned in the 48th section of the act of 1852. Kerr v. Pawson, 6 Week. Rep. 447.

CONDITIONS OF SALE.-Providing for rescission of contract-Purchaser's requisitions—Right of

vendor to rescind contract-Specific performance.— We have at various times called attention to the importance of the due framing of the conditions of sale, and the following case is another example for the profession on this head, and is especially instructive as showing how closely the courts hold a vendor to the terms of his own conditions. It is unfortunate that the peculiar circumstances of the vendors in the following case prevent them from taking the opinion of a court of appeal on the point. One of the conditions of sale of certain leasehold premises, provided that if the purchaser should show any objection, whether of title, conveyance, or otherwise, and should insist thereon, the vendor should be at liberty to rescind the contract and annul the sale, on returning the deposit without interest or costs. The purchaser delivered certain requisitions on the title, some of which were covered by special conditions of sale. He also required the concurrence of certain mortgagees in the assignment. The vendor acknowledged the receipt of the requisitions, and stated that they were of such a kind, that he thought fit to rescind the contract, and annul the sale. On a bill filed by the purchaser for specific performance, waiving all objections to the title which the vendor should be unable to comply with: Held, that the vendor was not justified in rescinding the contract under the condition, without making any reply to the purchaser's requisitions, although untenable, and a decree was given for specific performance, with costs, the plaintiff waiving all objections to the title. (Greaves v. Wilson, 31 Law Tim. Rep. 68). This case is so important, and the doctrines enunciated by the Master of the Rolls, so deserving of attention, that we give his judgment at some length. His Honor said, "I am of opinion that the plaintiff is entitled to a decree for specific performance. The mode in which conditions of sale must be construed, is laid down very clearly in all the authorities upon the subject; and, I think, nowhere more clearly than by Sir James Wigram. They must be construed, like any other instrument, most strictly against the person who frames them, because he alone can judge of the necessity or propriety of making such condititions before he offers the property for sale. In addition to that, it is to be borne in mind, that a person who offers property for sale has certain duties which attach to him in that character, and he cannot get rid of these duties by selling, subject to this particular condition: for instance, he cannot by a condition of sale of this description, compel a purchaser to take a title upon an insufficient abstract, if he is able to give him a complete one. He is bound to perform the duty of a vendor as fully as he is able to do, subject to this exception, that the duty shall be reasonable; for the reasonableness of the

thing required, is always a question with the court, and whether it may occasion a great amount of labour and expense; for, although it may be in his power to do it, it may involve so much expense and trouble, as to make it unreasonable that he should be called upon to do it. This exceptional condition is framed with a view of meeting a case of that nature. But Page v. Adam (4 Beav. 269), establishes this proposition-that a vendor cannot make use of such a condition of sale as this, to rescind a contract for the purpose of getting rid of a duty which attaches to him upon the rest of the contract, namely, to make out a good title; and accordingly, in that case, Lord Langdale held the notice to rescind the contract to be null. These conditions, then, are to be construed most strictly against the vendor. Assuming-which is my present impression-that certain of the requisitions upon the title were not tenable, being covered by the conditions of sale, still the vendor cannot on this account, be entitled to say, "I will put an end to the contract at once, without making any observations on the subject.' The condition says—' If the purchaser, shall, within the term limited, show any objection, whether of title, conveyance or otherwise, and shall insist thereon, the vendor shall be at liberty to rescind the contract, and annul the sale.' Does that mean, that if a requisition is made to the vendor, which he disapproves of, or which he dislikes, thereupon he is to be at liberty at once to say, 'I will put an end to the contract?' It is clear it would not in some cases. Suppose this had been simply a requisition that the mortgagee should join in the conveyance to the plaintiff, could it be argued that the vendor would be at liberty to say, 'I will put an end to the contract?' It was necessarily incidental to the sale, that the vendor should sell the premises discharged from all incumbrances, and therefore to get the persons who were incumbrancers to join in the conveyance. I am of opinion, that under the words, 'shall show any objection, and shall insist thereon,' the vendor's solicitor was bound to say, 'with respect to some of these requisitions, they are untenable, and with respect to others, we cannot comply with them; with respect to the last, namely, that requiring the concurrence of the mortgagees, we will obtain their concurrence.' If, after making an answer to that effect, the plaintiff, the purchaser, had said, 'I insist upon having these requisitions complied with,' then the vendor might have been entitled to say, 'I don't wish to have a Chancery suit for the purpose of determining that question, and I will put an end to the contract of sale.' But even in such a case, there must be a certain degree of reasonableness; because, if the sole requisition had been, that the mortgagee should join in the conveyance, that would not have entitled

the vendor to put an end to the contract. In my opinion, the defendant was not entitled to give notice to rescind the contract at the time and in the manner he did, without giving any answer to the requisitions. Considerable light is thrown upon this matter by a circumstance, which appears on the evidence, that this was a very unfortunate sale for the defendant; that the property was sold for much less than it was worth-much less than the reserved price. This circumstance, in my opinion, tells against the defendant; but the circumstance, that the property sold unfavourably, was no reason for putting an end to the contract. If it was intended to make use of this condition of sale, for the purpose of avoiding the sale, in case the property should not be sold for the full value, then this condition of sale was fraudulent, and it cannot be allowed to be made use of for that purpose."


STEPHEN'S NEW COMMENTARIES. New Commentaries on the Laws of England (partly founded on Blackstone). By HENRY JOHN STEPHEN, Serjeant-at-Law. Fourth edition. Prepared for the press by JAMES STEPHEN, LL.D., of the Middle Temple, Barrister-at-Law, and Professor of English Law and Jurisprudence at King's College, London. In four volumes : £4. 4s. London: Butterworths.

IF Blackstone's object in the preparation of his Commentaries, whether in the original shape of college lectures, or in the subsequent form of a published work, was to attract the attention of his fellow countrymen, he certainly attained it to an eminent degree; and not merely in his lifetime, but even now, though it is long since the inexorable pallida mors claimed him. Indeed, there is scarcely any work which has excited both friends and opponents to so great a degree, with probably the usual result -namely, on the one side an undue laudation, and on the other an excessive depreciation. The latter have not scrupled to attack the work in every possible shape, as for its errors in fact, its defects in general principles, and even for its bad style. This latter charge may seem somewhat startling in connexion with the well-known fact, that Bentham, Gibbon, and Robertson (with others), not merely read the Commentaries, but even submitted to the drudgery of copying them, with a view to the formation of a style though it must be admitted that the influence of Blackstone in that respect is scarcely perceptible in them. The celebrated Fox deliberately stated that Blackstone's style was the best among modern writers; "always easy and intelligible,

far more correct than Hume, and less studied and made up than Robertson." Again, "his purity of style I particularly admire; he was distinguished as much for simplicity and strength as any writer in the English language." Sir James Macintosh says he was "a great master of classical and harmonious composition." The other merits of the Commentaries have been allowed by very eminent men in language sometimes a little too eulogistic. Thus, President Quincy (Dane Law College) speaks of "the great magician Blackstone stretching his scientific wand over the illimitable ocean without bound, and causing confusion to disappear." So Lord Avonmore says. "He it was who first gave to the law the air of science he found it a skeleton, and he clothed it with life, colour, and complexion; he embraced the cold statue, and by his touch it grew into youth, and health, and beauty." Speaking of the chapter on "Expectant Estates," Chancellor Kent says: "I have read that chapter frequently, but never without a mixture of delight and despair." Sir William Jones says: "The Commentaries are the most correct and beautiful outline ever exhibited of any human science." See further testimonies fully stated 1 Law Stud. Mag. 10-12; 4 Id. 209-211, 233-236. On the other hand, Sedgwick, Ritso, and others have disparaged the Commentaries; and it is not to be doubted that the unpopular views which Blackstone enunciated respecting the "wisdom of our ancestors," "the perfection of the constitution and the law," and other similar laudatory flourishes, have given rise to many strictures which have not been altogether undeserving, though it would have been more fair to have confined them to the peccant parts, and not to have indulged, as many have, in a general condemnation of the whole work. From the very fact of Blackstone's work meeting with so much criticism it may fairly be concluded that it was esteemed worthy of notice, for, as Boileau is reported to have said, on some friends telling him that the critics spoke very severely of a recent production of his, "So much the better, for they never speak at all of bad works." In our opinion, the labours of Blackstone have never received a just appreciation from either friend or foe, nor has any one of his editors caught the true spirit of the work, or, at least, no one of them has worked by the light of it. It should be borne in mind that Blackstone was not a practical lawyer, but rather a literary character, as shown by his contributions to various publications, independently of those of which he was the sole author. And in the composition of his lectures, as in their subsequent adaptation to a book form, he had in view more the literary than the practical part of the law. Indeed, no discriminating reader can fail to perceive that the historical portions of

the work are those which have received the greatest polish and been most elaborated. Blackstone was near accomplishing for law what Johnson truly predicted Goldsmith would do for natural history-make it as entertaining as a Persian tale. We do not envy the youth who, reading the Commentaries for the first time, has not felt some degree of delight in accompanying the author over, at least, the historical parts of the work. If, indeed, such a reader possessed a knowledge of previous works on the law, his admiration would be greatly raised; even the sturdy Bentham has allowed himself to be so far moved as to declare: "Blackstone it is, in short, who, first of all institutional writers, has taught jurisprudence to speak the language of the scholar and the gentleman; put a polish on that rugged science; cleansed her from the dirt and cobwebs of the office," &c.

Our object, however, is not now to speak so much of Blackstone as of Stephen-or, rather, of the Stephens, for Mr. Serjeant Stephen, the original author, has left the labours of the present, as of the former edition, to his son, Mr. James Stephen. We may observe, that some critic has said that Stephen's Commentary is just such a work as Blackstone, had he been now alive, would have produced—intending thereby, no doubt, great praise; but we believe that Blackstone could not have produced such a work as the present, because he did not possess the practical mind which has evidently presided over the editing of the New Commentaries. Again, it has been objected that Mr. Serjeant Stephen, instead of scrupulously noting what he has taken from Blackstone, would have done better to have made a general acknowledgment, and then have taken whatever he pleased without any indicating marks, but we consider the learned Serjeant has pursued a more satisfactory plan, inasmuch as a reader can at once see what is Blackstone and what is Stephen, and yet more, he may learn at a glance how far the text of Blackstone has been modified since he wrote-a matter of no little importance to the student. We must confess that the author has been extremely rigid in the application of his rule; thus, in Vol. i., p. 5, every portion of the page is Blackstone's except the simple word "again," which has been contributed by Mr. Serjeant Stephen. This may seem to show an excess of conscientiousness.

The present is the fourth edition-the first having been published (in separate volumes) about sixteen years ago which indicates a large degree of popularity for a work of such size, and at such a price. In reference to the work itself (putting out of view the originality of the plan), we may observe, it is wonderfully correct, forming in that respect a great contrast to some cheap editions of Blackstone, and contains a vast quantity of information, not only in the body, but

likewise in the notes. Indeed, the latter will frequently be found extremely useful to the practitioner, directing him to the latest acts of Parliament and cases on the various subjects noticed in the text. These notes are frequently made the vehicle of some. information respecting the text of Blackstone, and thus the attention of the student is called more prominently to the matter. Thus, in Vol. i., p. 435, it is said: "Blackstone here gives an additional reason for the rule as to bastard eigné, that the law will not suffer a man to be bastardised after his death, who entered as heir, and died seised, and so passed for legitimate in his lifetime (2 Bl. Com. 248). And the same reason is given in Co. Litt. 244 a.; but the correctness of this view is questionable, for there is no other case in which the temporal courts allow the maxim, that a man shall not be bastardised after his death (see Co. Litt., by Butler, 244 b., n. s)." Again, at p. 457 of the same volume, speaking of the writ of ad quod damnum, and the 27 Edw. 1, s. 2, it is said: "The expression of Blackstone is 'marked out', but it has been justly observed, that the statute itself mentions the proceeding as a thing accustomed.'" Again, at p. 614 of the same volume, speaking of estates being entangled with resulting trusts, &c., unknown to the simple conveyances of the common law, it is added: "Blackstone also enumerates contingent remainders, but these were known to the common law. They were probably considered encroachments on the common law (say the Real Property Commissioners) but were certainly allowed by it. They were early attempts to meet the contingencies of family settlements, and were introduced long before the Statute of Uses (Third Real Prop. Rep. 23)."


As to the practical nature of many of the notes we may refer to the following in Vol. i., on Inelosures and Exchanges: "The provisions of the 8 & 9 Vic. c. 93, and the subsequent acts as to exchanges, are extended to partitions by 11 & 12 Vic. c. 99, ss. 13, 14; and see 12 & 13 Vic. c. 83, s. 7, as to the application of those provisions to exchanges of rights of common or fishing, manorial rights, easements, quit rents, heriots, tithes, &c., for any other of the said rights. See also further provisions as to exchanges and partitions 20 & 21 Vict. c. 34, ss. 4-11. It is to be observed, that both an exchange and a partition may take place on the application of parties interested, even in cases where no proceedings for an inclosure are pending, or where the lands are not subject to be inclosed under the acts 8 & 9 Vic. c. 118, s. 147; 9 & 10 Vic. c. 70, s. 9; 11 & 12 Vic. c. 99, s. 13; 12 & 13 Vict. c. 83, s. 7; 17 & 18 Vic. c. 97, ss. 2, 3. On the construction of the provisions of these acts relative to exchanges, see Minet v. Leman, 24 L. J. R. Ch. 545."

Again, speaking of estoppel, it is said in the note to p. 482: "We may here remark, that there are other species of estoppel besides the estoppel by deed mentioned in the text-viz., estoppel by record, and estoppel by matter in pais. The first obtains in the case where any fact is alleged in a court of record, or any judgment given therein; the second, where an act is done out of court. By such matter of record, persons who were parties to the suit-and, by such matter in pais, persons who were parties to the act in question are in general precluded from afterwards alleging matters which would be contradictory to what the record or act imparts. For further information as to estoppel, and the different species thereof, vide Plowd. 434; Co. Litt. 260, 352 a.; 1 Saund. by Wms. 325 a., n. (4), and 2 Saund. by Wms. 148; Hill v. Manchester Co., 2 Barn. & Adol. 544; Right v. Bucknell, 2 Barn. & Adol. 278; Lainson v. Tremeere, Ad. & El. 742; Bowman v. Tayler, 2 Ad. & El. 278; Whitton v. Peacock, 2 Bing. N. C. 411; Cardwell v. Lucas, 2 M. & W. 117; Carpenter v. Buller, 8 M. & W. 209; Carter v. James, 13 M. & W. 137; Lyon v. Read, Id. 285; Downs v. Cooper, 2 Q. B. 256; R. v. Leominster, 5 Q. B. 640; Pargeter v. Harris, 7 Q. B. 708; Dawson v. Gregory, Id. 756; Smith's Leading Cases, Vol. ii., pp. 436, 460.”

Each edition of the work contains less of Blackstone's text than its immediate predecessor, this being the natural result of the many legislative enactments made during the last sixteen years. Indeed, the work must not be considered in the light of an edition of Blackstone, but is entitled to rank as an original work. We should like to have presented various extracts from the work to support our opinion, but as it is one which is already, or will soon be, in the hands of most of our readers, we forbear doing this to any extent, and therefore confine ourselves to the following extract from the chapter on Husband and Wife, omitting the references and notes; the parts within brackets ([]) are due to Blackstone :

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"We are next to consider the manner in which marriage may be dissolved. This may be either by death or divorce. Prior to the new Divorce Act, 20 & 21 Vic. c. 85, there were [two kinds of divorce; the one, à vinculo_matrimonii; the other, merely à mensâ et thoro.] The divorce à vinculo was founded on such canonical disability as already described, and was to be obtained from the Ecclesiastical Court. By the sentence, the marriage was declared [null, as having been absolutely unlawful ab initio,] and the parties were therefore [separated pro salute animarum]; and by the effect of the sentence the issue became bastards; and the parties were at liberty to contract another marriage. Divorce à mensâ et thoro was the remedy where the marriage was lawful ab initio; but from some supervenient

cause it became improper for the parties to live together, as in the case of intolerable cruelty in the husband, adultery in either of the parties, a perpetual disease, or the conviction of the husband for an unnatural offence. It was from the Ecclesiastical Court that this kind of divorce also was to be obtained. But it could not be obtained by the husband, as for adultery, if the wife recriminated and proved that he also had been unfaithful to the marriage vow, or if it appeared that after knowledge of her adultery he had cohabited with her. The sentence for this divorce, though it effected the separation of the parties, did not annul the marriage, and it was therefore essentially different from the divorce à vinculo. By its effect the wife, if the innocent party, generally became entitled to alimony, that is an allowance [for her support out of the husband's estate, being settled at the discretion of the ecclesiastical judge on consideration of all the circumstances of the case,] and generally [proportioned to the rank and quality of the parties.] But the law allowed no alimony to the wife, in case the divorce was obtained for adultery on her part, nor in case of her having from other sources a sufficient income.

The divorce à vinculo could not be obtained for any cause supervenient upon the marriage; for the canon law, which the common law followed in that respect, [deems so highly and with such mysterious reverence of the nuptial tie, that it will not allow it to be unloosed for any cause whatsoever that arises after the union is made. And this is said to be built on the divine revealed law; though that expressly assigns incontinence as a cause (and indeed the only cause) why a man may put away his wife and marry another.] Adultery was therefore, with us, [only a cause of separation from bed and board.] But though this divorce could not be obtained in the regular course of law, on the ground of adultery, yet it was very frequently granted on that ground, by a private act of Parliament; it having become the practice of the legislature to exercise its paramount authority in this manner, by way of extraordinary relief to the injured party.

By the new Divorce Act, however, this former stat of the law has been just subjected to changes of a fundamental and most important character. Not only has the jurisdiction of the Ecclesiastical Courts in causes matrimonial been taken from them and transferred to the new Court for Divorce and Matrimonial Causes, but many new provisions have been introduced into this branch of the law; the main effect of which may be summarily stated as follows. The act provides,

1. That, in lieu of the divorce à mensâ et thoro the new court may decree, on the petition either of husband or wife, a judicial separation; which shall have all the effect that belonged to the divorce just mentioned; and that the same relief may also be obtained by petition to any judge of assize for the county in which the parties last resided together: that this judicial separation may be decreed on the ground of adultery, or cruelty, or desertion without cause for two years and upwards; and that by its effect the wife shall acquire as to property, and many other purposes, the condition of a feme sole.

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