reward for the service, and not the man best qualified. For, does not the solicitor, thus acting at the bidding of the assignees, perpetrate a fraud on those consulting him in such a case? He practises a deceit upon them by commending to their credit and confidence, in matters where legal skill and knowledge are required, one whose qualification, to him, is the being able to pay a certain premium, and not the possession of those capabilities which they are led to believe he does possess, by being referred to him in those affairs in which the possession and exercise of nothing but those capabilities are required.

I should not have troubled you with the above had you not invited correspondence on the point; and, for fear of being too tedious, I will offer no comment on any case, but simply mention three relating to the subject-Bunn v. Guy (4 East. 190), Caudler v. Caudler (1 Jac. Rep. 231), and Bozon v. Farlow (1 Meriv. 459). These cases do not decide the point in question, but still they render information thereon which I think corroborates what has been written. Yours, &c., JAMES B. PORTER. If any subscriber feels disposed to elaborate the subject I should be glad to correspond with him.

MOOT POINTS.

No. 38. Admission of Solicitor Barrister.-A. B., having served under articles of clerkship for five years, was duly admitted on the rolls of attorneys. He subsequently obtained a call to the bar, and was accordingly struck off the rolls. Circumstances have arisen which make it desirable that he should again be admitted on the rolls of attorneys; can the said A. B. be so admitted without again serving under articles for three years?-JOHN CULLIMORE (Messrs. Crossman and Lloyd's), Thornbury.

No. 39.-Legacies-Lapse.-Particular and residuary funds.— A testator directed his executors to invest £4,000 in the Funds, and to pay the dividends thereof to his nephews and nieces, A., B., and C., for their respective lives, and to the children of a deceased nephew until the latter attained twenty-one; and on the latter attaining twenty-one, to pay the principal of the fund whence their dividends arose to them equally for their absolute use; and as to his nephews and nieces, after their respective deceases, to pay the principal of the fund whence their respective dividends arose to their respective children equally for their absolute use. And the testator bequeathed his residuary personal estate to the same persons and for the same interests. A. died without having had any child,

An

and questions have arisen-first, as to the persons entitled to the fund from which A.'s dividends were payable; and, second, as to the persons entitled to the residue of the testator's estate. opinion was taken to the effect following, viz. :-That as to the fund out of which A.'s annuity was derived, by such annuitant's death without issue the fund fell into the residue, and belonged to the persons who then were entitled to the residuary estate, viz, B., C., and the children of D. (Cambridge v. Rous, 8 Ves. 25; 15 Ves. 415). That the dividends up to the death of A. were payable to her personal representatives (4 & 5 Will. IV. c. 22; Trimmer v. Danby, 23 Law Tim. Rep. 125). That as to the share of the residue to which A. was entitled, such share had lapsed, and belonged to the next of kin of the testator at the time of his decease, the doctrine of lapse not applying to the case of a gift of residue (Shrymshire v. Northcote, 1 Swanst. 576; Bagwell v. Dry, 1 P. Will. 700). That the dividends up to the death of A. were payable to her personal representatives. That no administration was required in respect either of the annuity fund or of the share of the lapsed residue, unless, indeed, as to the latter, any of the next of kin were then dead intestate, when, in respect of the share of such intestate next of kin, administration was requisite. It appears to me that the above opinion is incorrect in confining the benefit of the annuity fund to B., C., and the children of D., and, indeed, the opinion in this respect is inconsistent with itself, for it states, and correctly, that such fund fell into the residue, and belonged to the persons who then were entitled to the residuary estate, and therefore the fund must have been divisible otherwise than as above stated. The whole case is, I think, one which would repay careful consideration by some of your intelligent subscribers, and it is for their sakes I send it for insertion; though, as I am too much occupied by business matters, I do not invite correspondence with myself, and therefore merely subscribe myself, ONE, &c.

No. 40.-Bastardy.-Lost order.-A. obtained an order in 1851, and B., the putative father, was duly served with it, and he kept up the payments under it until April last. A. states that the order

was destroyed at a fire about four years ago. B. has admitted to A. that he has the order with which he was served. There is no minute in existence, with the exception of the annual return to the clerk of the peace, as to when the order was made. B. is aware that the order is destroyed. Would a magistrate be justified in issuing a warrant against B. and, if not, would secondary evidence of the making of the order, and the payments under it for twelve years past, be admissible by first giving notice to B. to produce the order in his possession, or by a summons requiring him to produce it ?-T. J. PITFIELD, Wimborne Minster, Dorsetshire.

DESCENT AMONG COPARCENERS.

The effect of 3 & 4 Will. IV. c. 106, ss. 1 and 2 on Descents among Coparceners.

MOST of our readers are aware that the profession were divided in opinion as the effect which the new Inheritance Act, the 3 & 4 Will. IV. c. 106, ss. 1 and 2, had on descents among coparceners, and we now propose to notice the subject in reference to the case of Cooper v. France, referred to in 2 Exam. Chron. p. 229, which, as we shall show, is not so satisfactory as to preclude the question being again agitated.

By sect. 1 of the Inheritance Act the words "the purchaser shall mean the person who last acquired the land otherwise than by descent, or than by any escheat, partition, or inclosure, by the effect of which the land shall have become part of or descendible in the same manner as other land acquired by descent. The second section then proceeds to enact, "That in every case descent shall be traced from the purchaser; and to the intent that the pedigree may never be carried further back than the circumstances of the case and the nature of the title shall require, the person last entitled to the land shall, for the purposes of this Act, be considered to have been the purchaser thereof, unless it shall be proved that he inherited the same, in which case the person from whom he inherited the same shall be considered to have been the purchaser, unless it shall be proved that he inherited the same; and in like manner the last [most remote] person from whom the land shall be proved to have been inherited shall in every case be considered to have been the purchaser, unless it shall be proved that he inherited the same."

Soon after the passing of the Inheritance Act, the question was raised as to the effect of the above enactments on descents from coparceners.

The first writer who noticed the subject was a contributor to the "Law Magazine," in a comment on the statute soon after its passing. Other writers have since given their opinions, and in 1 Jarman's Convey. by Sweet (pp. 138-141) where the 3 & 4 Will. IV. c. 106, is noticed, it is said "the course of even lineal descents will frequently be affected under the operation of s. 1, in a manner not contemplated by the framers of the Act, and which is so inequitable and inconvenient that the clause should be amended without delay. .... Under the new law, the descent of the share of a deceased coparcener is required to be traced in all cases from the purchaser, and in the cases supposed [namely, one of two co-heiresses dying leaving a son, and the co-heiress surviving] the heir of the purchaser is the son of the deceased daughter, together with the surviving daughter, so that the son would take only one-half of his mother's

share, or one-fourth of the original estate; whereas had his mother never come to the estate at all, but had died in the purchaser's lifetime, he would have been entitled to half. In a case within the editor's knowledge, an estate has already, by the effect of this clause, become subdivided into sixteenths, and will remain, during the next fourteen years, exposed to the danger of being further reduced to 1-128ths by the death of an infant without issue. In a case of

this kind it is understood that opinions (founded on Litt. s. 313) have been given in favour of the son's claim to the whole of the mother's share; but that such a claim cannot be supported will be evident when the wording of the clause and the nature of an estate in coparcenary are considered. On the death of a coparcener, the only estate upon which the Act can operate is her own share; and it is declared that the descent of that is to be traced from the purchasing ancestor." Subsequently to the publication of Mr. Sweet's remarks, much discussion took place on the subject, both in print and in chambers. Thus a series of long but rather profitless articles appeared in the "Jurist" (vol. x. pt. 2, pp. 71, 75, 112, 132, 160, 173), and the question was elaborately discussed by the conveyancing lecturer (the late D. W. Lewis) and his pupils in Gray's Inn Hall. The lecturer, however, could come to no conclusion, there appearing no exact data for a certain opinion. At length the question was brought before a Court of Equity, and the Judge (the Vice-Chancellor of England) decided that the Act made no alteration in the law, and that on the death of a coparcener her eldest son will take her share, to the exclusion of the other co-parcener (Cooper v. France, 14 Jur. 214). It appeared that one G. T., who was seised in fee, died in 1826, intestate, leaving Ellen Cooper and Sarah France his co-heiresses at law. E. Cooper continued seised of her moiety till June 1, 1835, when she died intestate, leaving Geo. Cooper, her eldest son, her heir-at-law. S. France was alleged to have continued seised of her moiety until January 16, 1839, when she died intestate, leaving B. France, her eldest son, her heir-at-law. The devisees of G. Cooper having filed their bill for a partition, the plaintiffs claimed under the 3 & 4 Will. IV. c. 106, s. 2, five-eighths of the hereditaments, contending that on the death of Ellen Cooper her moiety descended in moieties on Sarah France and George Cooper, as co-heirs of John Tomlinson, who, in the bill and on the argument, was taken to be the purchaser; therefore Sarah France obtained three-fourths, or six-eighths, and George Cooper, one-fourth, or two-eighths; and that on the death of Sarah France her six-eighths descended in moieties on Benjamin France and George Cooper; therefore Benjamin France took three-eighths, and George Cooper took five-eighths. The defendant, Benjamin France, on the contrary, contended that his mother's moiety had descended

on him, and that the moiety of Ellen Cooper had descended on George Cooper. Both parties requested his Honour to decide the question, but he at first intimated that it would be necessary to send it to a court of law. The Vice-Chancellor of England said, “I cannot bring myself to entertain the least doubt that Ellen's foureighths descended on her son George. I do not see how any one acquainted with the principles of law can doubt. Can you suppose that an Act of Parliament, by any portion of it, meant to introduce doubt into a case that was so plain before the Act was passed? Was it not the meaning of the Act to leave the law of inheritance, in such parts as were plain, absolutely as it was found, and only to alter it where it was doubtful? Just observe what is

the purview-To the intent that the pedigree may never be carried further back than the circumstances of the case and the nature of the title shall require'-that is the general object, stated in distinct words- the person last entitled to the land shall, for the purposes of this Act, be considered to have been the purchaser thereof, unless it shall be proved that he inherited the same.' There the Act is speaking of what ought to be the rule in cases where the thing is doubtful, but not where the thing is so plain that nobody could doubt. You must make it consistent, and if you see an Act was passed to make the thing clear, do not say that the Act was to make it doubtful. On looking through the Act, that portion of the 2nd section appeared to me so plain that I shall not send the case to law. Declare, that on the death of Ellen Cooper her moiety descended upon George Cooper; and that on the death of Sarah France her moiety descended upon Benjamin France."

The above decision is not a satisfactory one, for it may be said to have left the argument just where it was before. No difficulty is got rid of, as, indeed, the Judge could see none. It amounts to this: So was the law before the statute, and so it is since; for being formerly a very clear case, the ctatute (it is said) could not possibly intend to introduce doubt.

Having thus, with all possible deference to the Vice-Chancellor, declared our dissatisfaction with his decision, or, rather, with the reasons for it, we shall proceed to state our views on the proper construction of the statute, wherein, indeed, we shall be found to come to the same conclusion as the Vice-Chancellor, but, we trust, on more satisfactory grounds.

We say then that sect. 2 of the Act never contemplated a case in which the descent was to be traced from coparceners, for in such a case there can by no possibility be purchasers claiming under them. It is quite clear that coparceners can take by descent only. Now let us suppose that a party entitled to an estate has died since the 1st of January, 1834 (3 & 4 Will. IV. c. 106, s. 11), and that on