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PRICE 18. ** The following are the Names of the Gentlemen who favour THE JURIST with Reports of Cases argued and decided in the several Courts of Law and Equity: A QUESTION of considerable importance in the learning of the law of perpetuities, and on which there is at present not only a conflict of decisions, but of the arguments of learned writers, is, whether a limitation over in a will, of an estate which, from its very nature, cannot endure beyond the period allowed by the law of perpetuity, (as, for instance, a term of years determinable on lives), after words which, if applied to real estate, would give an estate tail, or to personal an absolute interest, is or is not too remote, as it unquestionably would be, if applied to any interest in real or personal estate, not confined in its duration. The authorities on this subject are not numerous, but they are contradictory. There is an early case of Love v. Wyndham, (1 Ventr. 79, and 1 Lev. 290), which is referred to by Mr. Fearne, (Conting. Rem., 9th ed., p. 460), and in the recent work of Mr. Lewis on Perpetuities, (p. 675), as determining, that, in a devise of a term for ninety-nine years, determinable on three lives, to A. for life, remainder to B. for life, and if B. should die without issue, over, the limitation is void for remoteness. It is not, however, clear that that case decides any such point. In Ventris, the case is stated as such a devise of a term for ninety-nine years, determinable on three lives. The arguments of the counsel for the plaintiff are stated on a totally different point from that under consideration, and the report contains nothing more. In Levinz, where the judgment is given, the case is stated as a devise of a term for years simply, without saying for lives; and the point argued was not, according to the report, in any manner relating to the extent of duration of the interest in the term, but whether there Was any difference between a devise to the first taker and his issue, or to him for his life, and if he die without VOL. VIII. CC issue; and consistent with the supposition that that was the only question then discussed, was the judgment, " that the remainder to the second son was void, and that a devise to one and his issue, with a remainder over, is all one with a devise to one for his life, and if he dies without issue, to another; for a remainder of a term shall not depend on a possibility so remote as the dying without issue." It would seem from this doubtful whether the point under discussion could arise at all in that case; at any rate, if it could, it was not the point actually discussed or decided; and Love v. Wyndham may, therefore, be struck out of the list of authorities against the validity of limitations over of a term determinable on lives, after words primâ facie importing an indefinite failure of issue*. The next case is King v. Cotton, (2 P. W. 676). There the precise point arose, but was not determined, nothing but the arguments being reported. That case may, therefore, also be dismissed as an authority. The case of Low v. Burron (3 P. W. 262) can scarcely be called an authority directly in point. However, part of the reasoning of that case is, as observed by Mr. Lewis, (p. 677), applicable to the doctrine under consideration. The question in Low v. Burron was, whether, in a devise of an estate pur autre vie to A. for life, remainder to her issue male, and for want of such issue, remainder to B., the remainder over was good. And it was held that it was, on the ground that the estate to A. and her issue was not, properly, an estate tail, the limitation to the issue, and over in default of issue, being properly only an appointment or designation of the persons who should take as special occupants after the decease of A. And * Mr. Lewis observes, on this case, that the attention of the court was not drawn to the particular point. But we apprehend the defect of the case, as an authority, goes further, and that it is more than probable that the term was, as described in Levinz, simply for years. interest vests at the death of the testator, and is transmissible to representatives, who will take whenever the event of B.'s death may happen. So, if the bequest be to A., in case B. shall die without issue. If that were allowed to be a good bequest, A.'s representatives would be entitled to take at whatever time the issue might fail. It is for that reason that it is held too re the presumption is strong, that an indefinite failure of issue could not be in the testator's contemplation. It may, on the whole, we apprehend, be assumed, that, upon authority, a bequest of such an interest in personal estate as of its own nature may endure beyond the limit of the rule against perpetuity, to A. for life, and in default of issue of A. to B. for life, is good as to the remainder to B.; on the ground, that, as the remainder must take effect during a life in being, if at all, it does not tend to a perpetuity. then, as an answer to the objection, that, if not an estate tail, the issue and remainder over could not be barred, the Lord Chancellor added to his previous observations, that there could be no danger of a perpetuity, because all the estates would determine on the expiration of the three lives; so that, in effect, it was only for one life, viz. that which should happen to be the survivor. The same point was determined in Wastneys v. Chap-mote. But if A. is personally to take the legacy, then pell, (1 B. Parl. Cas. 457), in reference also to a devise of a freehold pur autre vie. The two preceding cases turned, it has been seen, upon estates of freehold pur autre vie, and went upon the reasoning that the limitations over after the first estate for life are not strictly limitations, but descriptions of the special occupant intended to take. And as it is now fully settled, that, in such a series of dispositions of an estate pur autre vie, the devises both to the issue and to the remainderman are barrable, the result is, that, though not strictly estates tail, they are in the nature of estates It seems impossible to distinguish the principle of tail; so far as this;-that the limitations over are in the these cases from that of devises of a term, the duration nature of remainders after partial estates, and not in the of which is measured by lives; because a devise of the nature of substituted interests comprising the whole whole of such an interest is in effect no more than a deestate; and that they are barrable. So that the ques- vise of a life interest, and it cannot be important for tion of perpetuity cannot properly arise upon them. the question of perpetuity, that its duration is meaThere is authority upon dispositions of personal pro-sured not by the life of the devisee, but of the cestui que perty tending to establish this point, that, in devises of such property, limitations in remainder, after such words as 66 dying without issue," are good, if the limitations over are for life only; because then they cannot take effect at all, unless they take effect within the compass of a life in being, and, consequently, there is no tendency to perpetuity. Of this nature are Oakes v. Chalfont (Pollex. 38) and Trafford v. Boehm, (3 Atk. 449), in the latter of which Lord Hardwicke held, that, if a man limits a sum of money, on failure of issue of the body of husband and wife, to any other person in tail, the remainder would be void as an executory devise, being too remote, as it is upon a dying without issue generally of the husband and wife. But when the limitations over are for life, then it is a reasonable construction to construe it a failure of issue during the lives in being, which has been held in the case of executory devises to be a reasonable construction, if it falls within the compass of ever so many lives in being at the same time. In Barlow v. Salter, (17 Ves. 479), Sir W. Grant appears to have recognised the general doctrine, that, where there is a limitation over, after failure of issue, for life only, it is good, because by the failure of issue must necessarily be intended a failure of issue within the compass of a life. He held, it is true, in that case, that there was nothing to limit the generality of the words "dying without issue," because the limitation over was to four, the part of one of them, A., only for life, and her part to be divided between the survivors; so that the bequest over of estates, not merely for life, was to take effect when the failure of issue should happen, whether A. should be then living or not. The ground, therefore, of the judgment in Barlow v. Salter supports, instead of disapproving, the general doctrine of Trafford v. Boehm. And, in Massey v. Hudson, (2 Mer. 130), the same learned judge expresses himself thus: "A bequest to A., after the death of B., does not import that A. must himself live to receive the legacy. The vie. The principle of the cases where the limitation over is expressly or by implication for life, seems simply, that, as the taking effect of the estate limited cannot in fact be suspended beyond the term of a life in being, it is immaterial that words are used in the limitation, which in their literal sense imply possibility of longer suspense. The court will not, according to those cases, impute to a testator that he has used words in a sense, which the nature of the estates given, shews is an inpossible one. And the same reasoning appears to apply with as much force where the nature of the subjectmatter of the devise renders its exhaustion certain during the continuance of lives in being, as where it is the quantity of the estate, carved out of one of possible longer duration, that affords evidence of the intention. Those of our readers who seek more extended infor mation on this subject will find it in Fearne's Contingent Remainders, pp. 488 et seq.; Mr. Butler's note in the same book, p. 499; Mr. Lewis's Treatise on Perpetuities, 673; Prior on Limitations containing the word 'Issue," 103, and Mr. Jarman's Wills, a short note, vol. 1, p. 256. 66 ON THE PROTECTION, EITHER ENJOYED AT UPON THEM BY STATUTE. I. With respect to judicial officers, the general rule of law is, that the judges in the superior courts of record and in courts of general jurisdiction are not amenable the cases cited by De Grey, C. J., in Miller v. Seare, to the suitors of the court for their judicial acts. See 2 W. Bl. 1140, 1144, and by Lord Tenterden, C. J., Garnett v. Ferrand, (6 B. & C. 611, 625; 9 D. & R. 657, 670). "No action will lie against a judge for what he does judicially, though it should be laid falsò, mali in tiosè et scienter:”—North, C. J., in Soame v. Barnar- Ab and remaining in force, is a protection in An officer, having duties ministerial as well as judicial, is not liable to an action for a mistake in a judicial act. (Cullen v. Morris, 2 Stark. 577). (To be continued). LAW OF DEBTOR AND CREDITOR. We are enabled to give to our readers a copy of some observations, detailing a plan for improving the law of debtor and creditor without abolishing imprisonment for debt, proceeding from the pen of Mr. Fane, one of the learned Commissioners of the Court of Bankruptcy. Justices of the peace, whether as judges of record or not, when acting in the execution of powers and duties imposed upon them, enjoy a limited exemption from responsibility to a party aggrieved by their decisions, in the case of an unintentional error of judgment, provided the error was not as to the extent of their jurisdiction, so as to lead to a decision not merely erroneous, but void. (Brittain v. Kinnaird, 1 B. & B. 432; 4 B. Moore, 50: Mills v. Collett, 6 Bing. 85). "It is a general rule and principle of law, that, where justices of the peace have an authority given to them by an act of Parliament, and they appear to have acted within the jurisdiction so given, and to have done all that they are required by the act to do in order to originate their jurisdiction, a conviction drawn up in due form, * Neither shall a judge be charged at the suit of the King, a mistake or error of judgment in a matter of which he has risdiction. (Floyd and Barker's case, 12 Co. 24; and see Vadigate's case, cited Id. 25. 27 Ass. 19, cited by Holroyd, Basten v. Carew, 3 B. & C. 652; Groenvelt v. Burwell, Lord Raym. 454, 1 Salk. 396). Justices are not punishable for what they do at sessions, (Staund. P. C. 173), unless it be an act of manifest oppression or wilful abuse of power. (R. v. Byres, 2 Barnard. 249; R. v. The Justices of Seaford, 1 W. except on the order of a commissioner of the Court of Bl. 432; R. v. Holland, 1 T. R. 692; Lord Kenyon in R. v. Seton, 7 T. R. 374; see Hawk. P. C., b. 2, c. 13, s. 20; and note, infra). I.-Retain imprisonment for debt, for two purposes :First, as giving to debtors a strong motive for deduces insolvent debtors to come forward and meet their claring their own insolvency: The motive which increditors fairly is not love of justice, nor is it a feeling of honesty; it is dread of consequences; and the consequence which an insolvent debtor most dreads is the seizure of his person. Were it not hopeless, I should even propose to revive imprisonment on mesne process: for it is that sort of imprisonment which is the truly valuable one, and there could not be the smallest injustice in it, if it were qualified by these provisions:1. That no debtor should be arrested who had declared himself insolvent; 2. That no debtor should be arrested *See R. v. Mather, (2 Barnard. 249); R. v. Jackson, (1 T. R. 653); R. v. Borron, (3 B. & A. 432); R. v. Badger, In Dicas v. Lord Brougham, (6 C. & P. 249), which (7 Jur. 216), and other cases cited in Hawk. P. C., b. 2, c. 8, 18 an action of false imprisonment for an alleged error of judg- s. 74). For a conviction made maliciously and without any ment by the Lord Chancellor sitting in equity, Lord Lynd- reasonable or probable cause, in case such conviction shall have hurst, C. B., held, that the judgment, if erroneous, could not been quashed, there is an action upon the case, by stat. 43 be questioned in a court of law. 3 Geo. 3, c. 141. (See Burley v. Bethune, 5 Taunt. 583). NEWSPA Bankruptcy, made after careful investigation; 3. That no debtor should be arrested except in respect of a debt evidenced by the debtor's own handwriting; and, 4, that the commissioner should have power to release him, on his shewing that the creditor's demand was of a doubtful character. With these qualifications, whilst creditors have the use, debtors would be secure from the abuses, of the old law.-Secondly, As furnishing an easy means of inflicting punishment, where punishment is due: If imprisonment for debt is abolished, no punishment will ever be inflicted on debtors. Lighter offences, of very common occurrence, such as gross extravagance, giving undue preference to creditors, buying goods for the very purpose of turning them into money and paying a relation or friend, harassing creditors by vexatious defences, giving insufficient explanations, &c., cannot be punished by indictment under the criminal law. Graver offences will not, because creditors will not undertake the trouble and expense of prosecution. At present the burthen of proof is on the debtor; he is either in prison or subject to imprisonment, and must shew his claim to relief, which he can always do, knowing all the facts. If imprisonment for debt is abolished, the burthen will be shifted to the creditor, who must prove the debtor's guilt; and the debtor will of course insist on his privilege of not answering so as to criminate himself. II.-Suspend imprisonment pending inquiry.-No debtor who has declared his insolvency, and his willingness to submit to the law, ought to be either put in prison or kept there during the inquiry into his affairs and conduct: if out of prison, he should receive protection from arrest; if in prison, the court should order his immediate release. His fate should depend upon the result of the inquiry. III.-Facilitate imprisonment after inquiry, if inquiry shews that the debtor does not deserve relief. This should be effected by giving to every creditor, acknowledged as such in the debtor's accounts, all the rights of a judgment creditor; and thus enabling him, at very small expense, to seize the debtor's person as soon as the court's protection was withdrawn. When the debtor was in prison, he would pray for relief, which might be granted after he had undergone sufficient imprisonment. IV.-Consolidate the laws of bankruptcy and insolvency, and make them into one code.-It is absurd to have one law for bankrupts and another for insolvents. There is no rational ground of distinction between traders and non-traders. In every case the property, if any, should be seized and distributed, and the person and future property (except, perhaps, such as comes by heirship or will) freed either at once or after proper punishment. It is as cruel to send the debtor back into the world of industry to encounter the difficulties of competition under the weight of old debts, as it is to throw an animal into the water with a stone round its neck. It is scarcely possible for either to escape sinking. V.-But, whilst consolidating the law, maintain two distinct courts with distinct names, and, if possible, distinct places of business,-one for debtors with assets exceeding 100l., and one for debtors with less.-The reason for this proposal is, that, in practice, it is most inconvenient to mix up the affairs of merchants, bankers, and respectable tradesmen and their creditors, with the affairs of hack-cabmen, omnibus-drivers, washerwomen, &c., and their creditors. The presence of the lowest classes in any court has a tendency to drive out the more respectable, and it must be remembered that courts of bankruptcy and insolvency are necessarily attended by the suitors in person. The practical effect of having only one court will probably be, that the business of the Insolvent Debtors Court will be transferred to the Court of Bankruptcy, and the business of the Court of Bankruptcy to the privacy of solicitors' offices, and thus the greater part of the benefit derived from the reforms in bankruptcy effected in the last fifteen years will be neutralised. The character of the cases which the insolvent law of 1842 has brought into the Court of Bankruptcy may be judged of from this fact,-that the number of cases is about 1500, and the assets received about 5000l., being an average of about 31. 10s. in each case. Such cases are not fit for the Court of Bankruptcy, which Lord Eldon always declared was a court for the distribution of assets. In such cases official assignees are evidently useless. The true policy would be, if possible, to keep the cases as far apart as Portugal-street, Lincoln's-inn-fields, is from Basinghallstreet, in the centre of the city. VI.-Abolish execution against property at the suit of individual creditors, and substitute seizure, as in bankruptcy, and thus have only one seizure and one expense.If a debtor adjudged to pay a debt does not pay it, the strong presumption is, that it is because he cannot. If so, he is an insolvent; for if he cannot pay one creditor, à fortiori he cannot pay all. If he is insolvent, there is his exclusive benefit, to the prejudice of the rest; that no reason why his property should be seized by one, for one being always either a fictitious creditor in league with the debtor, or, if a real creditor, either a favoured one, or the most harsh, exacting, and selfish. Execution against property, to an honest creditor, is generally not only useless, but ruinous; for after the creditor has seized, a claimant to the property starts up, and as it is impossible, in the nature of things, for the creditor to know whether the claim is good or not, he either withdraws after having incurred considerable expense, or enters into the contest and is defeated by a fraudulent bill of sale, which he has no possible means of proving to be fraudulent. VII.-Enable the debtor as well as the creditor to ori ginate the proceedings in bankruptcy and insolvency; and, in order to facilitate proceedings by a creditor, make the non-payment of a debt within three weeks after judgment been given for not permitting a bankrupt to procure the an act of bankruptcy.-No satisfactory reason has ever adjudication of bankruptcy against himself. At present, the law allows him to gazette himself insolvent, but will not permit him to go further and obtain his protec tion from arrest. This is most unreasonable; and the more so, because, whilst the law embarrasses an honourable man, who objects to gain his object indirectly by persuading a friendly creditor to take out the fiat, it does not in the least impede the less scrupulous man, who always has a creditor ready to act. If the debtor could take out the fiat and procure a declaration of bankruptcy, on his own admission of the three requisites,a sufficient debt, a trading, and insolvency,―the expense of the attendance of three persons, and much delay, would constantly be saved. VIII.-Distinguish cases in the Court of Bankruptcy into two classes: the first class to include cases where the insolvent originates the proceedings against himself, and is willing to swear to his belief, that his assets, if realised in the ordinary course of business, would suffice pay 10s. in the pound on his debts: the second class to include all other cases. In the first class let privacy be the pervading principle, unless the assignees should require pub licity, or some ground should be shewn for suspecting fraud; and let the proceeding be called by some name other than bankruptcy,-cessio or composition, perhaps, might d In such cases there would be no publication in the Gazette and no seizure by the messenger in the first instance; the notice to creditors would be by private circular. In the second class publicity would be the prevailing principle.The object of this would be to furnish insolvent traders with a strong motive for the early calling together of their creditors, by exempting them in such case from harsh names and from unnecessary publicity; indeed, |