Mr. D. W. Harvey and the Inner Temple. 211 an over-anxious feeling to avail oneself of Mr. Serjeant Shepherd was as frightened as superior abilities-qualities unquestionably anybody. It made a strong impression on witreprehensible, but we are afraid a little too ness's mind, that Mr. Harvey had anything but common to call for the severe punishment that the Court, counsel, and jury, and everya reply-no reply whatever. It struck him of exclusion from the worldly prospects body else, were glad to get rid of the cause. which a man has otherwise a right to obtain. The cause was disposed of in a mode that was The other charge, however, is more heavy, anything but just towards Mr. Harvey.-[Sir being simply that Mr. Harvey having, as Churles Wetherell asked why Mr. Serjeant an attorney for a defendant, given an unShepherd was not here? Mr. Serjeant Wilde dertaking for his client, took occasion to replied that he was sure that if the Bench were appoint an interview with the attorney of to make the request he would attend.]-Witness said that all he knew of the cause of the the plaintiff, who had also signed the un-riot was from information that some Irish dertaking, and during the temporary ab-recruits had broken in to rescue some of their sence of the latter from his office, to abstract companions. He had no recollection of the this document, to leave the office, and decline to proceed further in the matter. This charge, if made out, is sufficient, in our opinion, to warrant the heavy penalty, not only of exclusion from the Bar, but also from that part of the profession into which Mr. Harvey had already introduced himself; and without giving any opinion of our own as to its being substantiated, we shall put our readers in possession of the statements and evidence made on Mr. Harvey's behalf in answer to it. The opposite attorney, however, stated his version of the affair. Mr. Harvey brought an action against him for the alleged slander; a justification was pleaded, and the jury found a verdict for the defendant. To this it is answered, that the trial came on the evening of a Saturday, the last day of the assizes; that it was the last cause, and was tried under very extraordinary circumstances, which are thus described by a respectable witness, Mr. Row-neys, going before a Court, ever had justice land Wimburn : "Witness was present at the trial of Harvey v. Andrew. Near the close of the day there was great commotion in the Court; he never before saw such a scene in his life. He believed that no person but he and the Judge (Mr. Justice Heath) were left in the Court; witness said he would not leave his Lordship, and the Judge said he would not go out. Some Irish recruits had got loose from the barracks. There were two or three hundred Irishmen, with bludgeons, falling pell mell on the people in the market-place. The counsel all ran out of Court. The jury had not given their verdict. The cause came on, he believed, after two o'clock. The speech of Mr. Garrow, for the defendant, lasted a considerable time, and had a great effect. Just as he had gone through that speech the riot took place; and when the Court met again, every one, he be lieved, was in the same situation as he was, and wanted their dinners, for it was nearly dark; he was sure that every one who had his senses about him was in that state. It was twentyfour years ago, and he had never had his attention called to it till now, but he thought they were out of Court three-quarters of an hour. day of the week, or of the month, but it was done them. Witness was not then agent for It should also be stated, that the only witness produced on the trial to prove the abstraction, was the brother of the rival attorney, between whom and Mr. Harvey there had been much ill feeling; and further, that evidence was tendered to the Benchers to prove that this brother was a disreputable person and unworthy of credit, and that such evidence was refused. Taken therefore with these drawbacks, we shall give the greater part of the evidence of this person, and the comments on it by counsel: "Mr. John Andrew (examined by Mr. Marryatt) deposed that his brother was employed to commence an action against Edward Shelley, for the payment of 1007. and an annuity of 5l., and that the cause was to have been tried at the Summer Assizes in 1808. That Mr. Harvey called at his brother's office on the 28th of July, a few days previous to the ness was then asked by his brother what Mr. Harvey had done with the papers? Witness said,There they are, brother,' (pointing to some papers on the desk); but finding only two, said, Good God, John, here are only two! I gave him four! on one of which was his undertaking, and which he has taken away with him.' That Mr. Andrew instantly ran up into the market to find Mr. Harvey, but not being able, returned in six or eight minutes, very much agitated," "It was singular that the witness stated that he saw Mr. Harvey put down two papers, but that there was no evidence of any one having given them to him. "A Master observed that Thomas Andrew had said he had given him four. "Mr. Serjeant Wilde begged to ask where was the evidence that he said so? The assertion was only made by John Andrew that his brother said so. He then read : : 212 Mr. D. W. Harvey and the Inner Temple.-Dissertations on Conveyancing. Assizes, and gave his undertaking to settle the action in six months. That Mr. Harvey called on the 20th of October following, and made an appointment for the parties to meet on the following Thursday, at half-past four o'clock in the afternoon, to settle the business. That Thursday was market-day at Coggeshall, and the day was fixed by Mr. Harvey himself. That on Thursday, the 27th October, previous to Mr. Harvey coming to the office, his brother and he removed several papers and deeds off his brother's desk to prevent Mr. Harvey's reading them, as they had always observed Mr. Harvey glancing his eyes over the papers that were lying on the desks, when he came to the office. That his brother and he drew out the accounts of the widow, as administratrix of her husband, and another between Mr. Rudkin, the plaintiff, and Shelley, the defendant; which last account was stated on the third side of the sheet of letter-paper, whereon Mr. Harvey wrote his undertaking on the 28th of "And sent witness, who, as he was going July. That Shelley called at the office about along in the street, saw Shelley, and asked him half-past four o'clock, and inquired if Mr. if he was not going to the office, as the parHarvey was there; who, being informed by ties were waiting. That Shelley told him he witness he was not, went away, and said he was not, as he had just seen Mr. Harvey, who would call again. That about five o'clock Mr. desired him to go home about his business, as Harvey called at the office, and the widow he should not want him to-night. Witness Shelley about the same time. That the ac- continued his search for Mr. Harvey, but hearcounts, with two other papers in the cause, ing no tidings of him, went to the hostler of were lying on the desk when Mr. Harvey en- the inn where Mr. Harvey puts up, and intered the office. That when Mr. Harvey had quired if Mr. Harvey's horse was in the stable. been present about ten minutes, two gentle- Being informed it was, he (witness) returned men from Maldon called at the office to execute to his brother, and told him what Shelley had an indemnity bond; and, on their entering the said, and that he was not able to find Mr. office, witness's brother begged of Mr. Harvey Harvey, but that his horse was in the Chapel to excuse him a moment, to which Mr. Harvey | stable. That Mr. Andrew then desired witassented, by bowing his head. That his brotherness to return immediately to the inn door, then went into an adjoining parlour, with the and not to stir till he had seen Mr. Harvey. two gentlemen, for the purpose of attesting Witness stood there about half an hour, when the execution of the bond, and witness conti- he saw Mr. Harvey coming out of the inn yard, nued in the office with Mr. Harvey. That as on his horse. Witness asked him if he was soon as his brother had shut the parlour door, not going down to the office; to which Mr. Mr. Harvey arose from his seat, and said, 'I Harvey replied he was not; he had sent his wonder Shelley don't come ; I'll go and see if client home." pp. 68—70. I can find him. I want to go up into the market, and will be back again in five minutes.' That he (Mr. Harvey) then threw two papers upon the desk, and hurried out of the office with loose papers in his hands." gave Mr. pos "The learned Serjeant asked who Harvey these papers? How became he sessed of them? If they were suspicious of him, why was he permitted to meddle with the papers unobserved? It appeared they were full of suspicion of him, and yet it was stated "that Mr. Harvey then threw two papers,' &c. The Benchers would please to observe that John Andrew said "two papers." The learned gentleman then continued reading the evidence: "Witness attended Mr. Harvey to the door, and shut it after him, where he continued till his brother came in, which was not more than three or four minutes after Mr. Harvey had left the office. That Mr. Andrew then asked witness where Mr. Harvey was? who told him he was gone into the market to find Shelley, and would be back again in five minutes. Wit We have purposely not alluded to the former proceedings which have taken place in Mr. Harvey's matter: as this at any rate is a new, and we presume a final trial, because the Judges, to whom the appeal lies, will probably confirm the certificate of the Benchers, we are anxious that it should be considered on its own merits; and we have therefore endeavoured to enable our readers to come to the true conclusion. DISSERTATIONS ON CONVEYANCING. ON THE PURCHASE OF REVERSIONARY A peculiarity attends the sale of reversionary interests, which we shall make the subject of Dissertations on Conveyancing, No. XIV. с our present consideration. On the purchase of all other kinds of property, mere inadequacy of consideration will not be inquired into, a unless it be so gross as to excite universal surprise; b but on the sale of a reversionary interest, the amount of the consideration given for it must be proved to be satisfactory, or the transaction will be considered invalid. The reasons assigned for this distinction, are more easily understood when an expectant heir is the vendor, as they chiefly rest on the undue advantage which may be taken of a person in a necessitous situation, who otherwise, in disposing of his future pro- | perty, to satisfy his present necessities, would have no protection from fraud and design, to | which his situation is supposed peculiarly to expose him. It is, however, not so easy to see where a person is sui juris, and fully capable of protecting his own interests, why he should not have the same power to dispose of his future as his present property; and it is well known, that the existing state of the law | operates to the disadvantage of the persons whom it is intended to protect, as it draws out of their market many respectable private purchasers, from the doubts affecting the point, and forces them either to deal with jobbers, or to take the chances of a public sale. Be this as it may, however, the rule seems, as it respects expectant heirs, as well as other persons, perfectly well settled, although there has lately been an inclination in the Courts, as far as possible, rather to confirm sales of this kind of property than to set them aside, as we shall endeavour to shew. A sale of a reversionary interest, by public auction, will, it seems, be valid, although the price be inadequate, as the rule does not apply to such sales.e 213 But the point most litigated of late has been, whether the adequacy of the price should be measured by the market value, or by the price said to be its value by actuaries, and according to the tables by which they give their opinions; and here it will be seen there is considerable conflict of authority. 66 In the case of Gowland v. De Faria, Sir William Grant seemed to consider that the price should be estimated by the tables of actuaries. "In many of the cases," he said, very opposite opinions are given by calculators; but here Mr. Morgan's opinion is not contradicted. I must, therefore, take the value to be inadequate." But this opinion is certainly against the current authority. In Griffith v. Spratley, Lord C. J. Eyre says, "the value of a thing is what it will produce, and admits of no precise standard. It must be. in its nature, fluctuating; and afterwards, if the actuary of the Amicable Society will extract from the tables, that an annuity for the life of the seller is worth twelve years' purchase, and yet no man is found on the Stock Exchange who will give more than six, and on and before and after the time of the contract, the sense of mankind evidenced by these transactions is, that such an annuity is not worth more, I cannot conceive how the Master drew the inference he did." And in the case of Headon v. Rosher, Sir William Alexander, C. B. said, "that the sum at which an actuary values a reversion, can never be obtained. However, in Hinxsman v. Smith, the Master of the Rolls said, "that in Gowland v. de Faria, Sir William Grant did not consider himself as laying down a new rule, but as following the current of authority; and since that case, the rule has been so far regarded as the settled law of the Court, that although he had upon more than one occasion judicially questioned both the principle and the policy of the rule, yet it would not become the Court to make a precedent in direct opposition to it." Neither does the rule apply to a sale by a father, tenant for life, and his son, tenant in tail in remainder, for they form a vendor with a present interest, and meet a purchaser with the same advantages as a single person, having In a very recent case, m the point, whether the whole power over the estate. A reversion, the opinions of actuaries were to decide the depending upon the contingency of the tenant question of adequacy, came before the present for life, who was sixty-three years of age, and Chief Baron, and he has decided that it is not a bachelor, dying without issue, is not the to have this effect; and to his judgment, which subject of estimate or calculation. But the will probably settle the question, we call parpurchaser of this reversion having, in his ticular attention. "In this case," he says, treaty with the vendor, proposed to deduct" it does not appear to me that there is any one half of the reversion, in respect of such contingency, and the treaty having been concluded upon that basis, the Court, as between the vendor and purchaser, will value the contingency accordingly. 8 a Coles v. Trecothick, 9 Ves. 234; Sug. V. & P. 241, 8th edit. b Per Lord Thurlow in Gwynne v. Heaton, 1 B. C. C. 1. See Earl of Portmore v. Taylor, 4 Sim. 182. d Hincksman v. Smith, 3 Russ. 433. e Shelly v. Nash, 3 Madd. 232; but see Fox v. Wright, 4 Madd. 111. Wood v. Abrey, 3 Madd. 417. Baker v. Bent, 1 Russ. & M. 224. thing upon which an imputation of fraud can rest; neither do I understand, on the part of the defendants, that any ease of fraud has been relied on. It appears that Mr. Charles Lovelace was entitled to an eighth of this reversionary interest. One of his brothers had sold his eighth of the same reversionary interest to Mr. Parker, and Mr. Potts had, in 214 Dissertations on Conveyancing, No. XIV. that transaction, acted as solicitor to Mr. | the price of an actuary cannot be obtained. Parker. Mr. Charles Lovelace being desirous The price set was an arithmetical value of it." to sell his interest, applied to Mr. Lee, his Sir William Alexander therefore, would have own solicitor, by whom an application was, in come to the conclusion, probably, in Gowland the first instance, made to Mr. Parker, to v. De Furia, that, according to his experience, know whether Mr. Parker, who had purchased he would not have been bound, as the Master the interest of the other brother, would also of the Rolls conceived himself to be, by the purchase the interest of Charles Lovelace. evidence of the calculated value. The Master He declined to do so. Similar applications of the Rolls thought that the calculated value, were made to several other persons, and they being opposed by no other evidence, was condeclined purchasing at the price required by clusive upon him. According to my underMr. Lee, as the agent and solicitor for the standing of the judgment of Sir William vendor, Mr. Lovelace. It then occurred to Alexander, he would not have considered them to apply to Mr. Potts. They accord- himself so bound; he would have exercised ingly made an application to Mr. Potts, who, his own understanding and experience, and in the course of conversation, made an offer made certain deductions from the calculated of 5501., and said he would give no more than value; but in the present case, we have evithat sum. Mr. Charles Lovelace was twenty-dence, not merely of the calculated value, but five years of age at that time, and was accom- evidence independent of it. Now, the evidence panied by his solicitor. He had a full oppor- of the calculated value of the two most extunity of considering the offer which was made, perienced witnesses on the part of the defendand he and his solicitor retired for the purpose ant, those on whose judginent I should be of considering it; and in the result they came disposed most to rely, Mr. Morgan and Mr. into the room again, and accepted the offer. Ansell, is, that the calculated value amounts There is nothing whatever to shew any fraud, to 7447. When I say 744/., that is the average or any imposition on the part of Mr. Potts, of their valuation, after deducting one eighth, and therefore the case must rest entirely upon in consequence of their calculation having the inadequacy of the consideration. It is originally included the 2000/., which it turns unnecessary for me to say what is the extent out should have been omitted. Their estiof the inadequacy of consideration which will mated value, therefore, is 7441.; two thirds of vitiate a contract of this kind, for it does not that sum is 496/. only. If you deduct, accordappear to me upon the evidence, as far as I ing to common experience, a third from the have been able to understand it, that the con- calculated value, the proportion to which, as sideration was inadequate when the subject the average price obtained, it would reduce is fairly considered. Undoubtedly in this case the 744/. to 4967., whereas the sum here conMr. Morgan and Mr. Ansell, who are both tracted for amounted to 550. But, what is actuaries, and accustomed to make calculations the evidence on the other side? The evidence of this description with great accuracy, state on the other side, of Mr. Fairbrother, is, that that they calculate the value of this reversion at it was not worth, to sell, more than 5307.; considerably more than the sum that was agreed the evidence of Mr. Abbott, that it was not to be paid for it. This brings me to the consi-worth more than 5007. Taking, therefore, the deration of the doctrine in Gowland v. De evidence of Mr. Fairbrother, and the evidence Faria. What is it the Master of the Rolls of Mr. Abbott, who are both experienced perthere says? He says, 'The question is, whe-sons in selling property of this description, ther he has received an adequate consideration. and contrasting that with the calculated value, Upon that question the evidence is all one way. the estimate they put upon the property is In many of these cases very opposite opinions something more than two-thirds of the calcuare given by calculators; but here Mr. Mor-lated value, and something less than the money gan's opinion is not contradicted; I must actually given for the property. There is therefore take the value to be inadequate; and another way of considering it, which I have I do not see how I can avoid setting aside the already presented to the parties. I would contract. In that case there was a calculated take Mr. Morgan and Mr. Ansell on one side, value; that value was stated by Mr. Morgan; and take their average, and then Fairbrother and the Muster of the Rolls not finding that and Abbott on the other side, and take their calculated value opposed by any evidence, con- average; and then, taking the average of the sidered he was bound by it; and, the calcu- two sets of calculators, I find the estimated lated value being much more than the sum value upon that average is only 5971., which paid, he considered the contract was altogether is only 47. more than the sum actually convoid. But I think the observations made upon tracted to be paid. Under these circumstances, that case by Sir Willium Alexander very judi- it does not appear to me that this is such a case cious and very proper. He says, calculated of inadequacy as will justify me declaring this value is never actual value; and no person an invalid contract. I feel I am bound to give selling a reversionary interest can ever expect effect to the contract, and to give judgment to get the calculated value.' And his reason for the plaintiff." The case stood over for is extremely good and satisfactory. He says, further consideration with respect to the questhe price agreed on, and actually paid, was, tion of costs; and the Lord Chief Baron afterin my opinion, the utmost that, according to wards said he had looked through the bill human probability, could have been obtained. and answers, and it appeared to him that it I do not dispute Mr. Morgan's valuation; but was necessary for the plaintiff to file his bill, and that he had made out his case and ought and the work concludes with the principal to have his costs. The bill was dismissed with Statutes, and an abundance of Practical costs, as to so much of it as related to the Forms. bond for 20007.; and a decree was made, with costs, as to the remainder of the suit. REVIEW. J. ↑ Mr. Tidd has very conveniently arranged these new and important materials in the order of the last edition of his original work. We scarcely need say that he has bestowed on this publication the same care, and displayed the same extensive and accurate knowledge of his subject, bringing the information down to the moment of publication, which has distinguished all his former editions The Practice of the Superior Courts of Law in Personal Actions and Ejectment, &c.; so far as it is altered, or affected by the late Statutes for the Amendment of the Law, &c., and the Rules of Court, and Decisions thereon: arranged in the order of the Ninth Edition of Tidd's Practice: with an Appendix of Statutes, Rules of Court, and Practical Forms. By William Tidd, Esq., Barrister at Law. London: Saunders & Benning, and H. Butter-Legislature has altered the Law and Prac worth. The outline we have thus given, may perhaps sufficiently shew the scope of the volume; but we shall add a brief statement of the subjects of each Chapter, especially as they will shew in what respects the 15. Proceed 22. Writs of In 24. Venue. 25. Bringing Money The se- into Court. 26. Abatement, Non joinder, and Misnomer. 34. tice of the Courts. 1. Actions, and the Time limited for their Commencement. 2. OUR readers are aware that there are three Officers of the Exchequer; Holidays; Fees, Supplements to Mr. Tidd's Practice. The &c. [The Chapters of the original Practice present publication, though containing mat-in which no alteration has been made, are ter arising subsequently to the last Supple- not repeated.] 4. Personal Actions-Sum7. Capias and Outment, may be considered as a new and mons and Distringas. separate work, comprising all the recent lawry. 12. Appearance and Bail. 13. ProStatutes and Rules of Court, with the deci-ceedings against the Sheriff. sions thereon. The last, which was the ings against Prisoners. 16. Removal of 17. Declaraninth edition of the author's General Prac- Causes from Inferior Courts. tice, was published in Trinity Term, 1828. tions. 18 Imparlance and Pleading. 20. The first Supplement comprised the Ad- The Interpleader Act. ministration of Justice Act, and the deci-quiry. sions down to Michaelmas 1830. 27. Pleas in Bar. 29. cond Supplement, in Hilary Vacation, 1832, contained the New Rules just then issued; Amending Fines and Recoveries, and Vaand the third Supplement followed the Uni- riances. 30. The Issue. 33. Trial of Isformity of Process Act, with the New Rules sues under the Law Amendment Act. thereon, and appeared in Michaelmas 1832. Jury Process, and Costs of Special Juries. The object of the present volume is to 35. Examination of Witnesses on Interropoint out the alterations made by the seve-gatories, Admission of Documents, and Evi36. Arbiral Acts passed, and the Rules of Court dence of Interested Witnesses. made since the Administration of Justice tration. 37. Interest on Debts. 39. ImAct, with the decisions It therefore in- mediate Judgment and Execution. 40. cludes the Acts for speedy Judgment and Costs. 41. Executions and Sheriff's Li46. Prohibition Execution (1 W. 4. c. 7); Prohibition and ability. 45. Ejectment. Our readers will, by this Mandamus (1 W. 4. c. 21); Examination and Mandamus. of Witnesses on Interrogatories (1 W. 4. catalogue, perceive at one view the nuc. 22); Interpleader (1 & 2 W. 4. c. 58); merous and important changes which the Prescription (2 & 3 W. 4. c. 71); Tithes Practice of the Common Law Courts has (2 & 3 W. 4. c. 100); Limitation of Real undergone, and from thence may form some Actions (3 & 4 W. 4. c. 27); Law Amend- notion of the labor of Mr. Tidd in stating ment (3 & 4 W. 4. c. 42); and Amendment the precise extent of all these alterations, of Process Act (3 & 4 W. 4. c. 67). There arranging them under their appropriate deare also other Acts incidentally noticed, as partments, and bringing all the decisions to to Written Memoranda, Variances, Carriers, bear on each respective point. This has and Tender of Bank Notes. The third been done with great pains and excellent Supplement, which contained the Process method; and it is with some satisfaction Act and Rules, being nearly out of print, is we perceive that the labors of our own able incorporated into the present publication; Reporters in the Superior Courts have not |