Page images
PDF
EPUB

as

such an application may be granted is well known: The court the remainder upon a subsequent date; in these cases the quesmust be of opinion that the verdict is so unreasonable as to show tion arises, When must the notice of claim be given ? Re Paul, that the jury have not really performed the judicial duty cast Ex parte Earl of Portarlington (24 Q. B. D. 247), was a case of upon them : see per Lord HALSBURY in Metropolitan Railway Co. this kind; there the tenant gave a notice to quit expiring on the v. Wright (11 App. Cas. 152), Of course, the jury are the judges 11th of October, and on that date he gave up 1,000 acres, but of the facts, and it is no part of the duty of the Court of Appeal under a local custom ho retained 200 acres until the 11th of to review those facts and upset the verdict if it is one which might February following, and certain barns and outbuildings until reasonably have been arrived at. It must, therefore, in all cases July. His notice of claim was served on the 29th of November be an arduous task to convince a tribunal that a verdict was - viz., after he had given up the 1,000 acres, but more than two absolutely perverse and unreasonable. But where the tribunal months before he had given up either the 200 acres or the is the Court of Appeal, the task has been more than arduous; it buildings. It was held by Lord COLERIDGE, C.J., and MATHEW, has been impossible. Consequently, no suitor could be advised J., that the notice was in time, the words " determination of the to attempt to interfere with an adverse and unreasonablo verdict tenancy” in section 7 moaning "the end of the holding of the unless he were prepared to carry his case to the supreme tri- land." It is not clear from the judgments whether the decision bunal. This was in most cases prohibitive, and the result has would have been the same if buildings only, and not agricultural been that the inflexible rule of the Lords Justices never to in- land, had been held over for two months after the notice. In terfere with a verdict has exalted the British jury to a pinnacle Black v. Clay (1894, A. C. 368) the facts were similar; grass of infallibility. In Jones v. Spencer the evidence on the main land, part of the holding, was given up at Whitsuntide, the point in dispute-the state of health of a horso on a given date-arable land was held over till Martinmas and the buildings till appears to have been conflicting; it evidently impressed the the following Whitsuntide. The case arose under the Scotch members of the Court of Appeal differently, for while Lord Act (46 & 47 Vict. c. 62), section 7 of which requires notice of ESHER, M.R., and CHITTY, L.J., refused to order a new trial, claim to be given in the same terms as are prescribed by section LOPES, L.J., was willing to do so. The House of Lords have 7 of the English Act already referred to, except that the period made the order unanimously. This decision cannot be without is four months instead of two. Here, also, a notice, given after its effect upon the Court of Appeal, and it has come at a time the grass land had been quitted, but more than four months when the changes in the composition of that court are likely to before the giving up of the arable, was held to be in time. make it somewhat sensitive to the judgments of the Upper Lord WATSON held that “determination of the tenancy House. But although "new trials may perhaps have been referred " to the time when the tenant finally gives up possesrestored to something of their former importance, there is little sion of the subjects which in the statute are described as his likelihood that there will be any disposition to favour reckless holding,'” and a "holding,” under both the Eaglish and the appeals upon questions which are prima facie for the jury, and Scotch Acts, must be “either wholly agricultural or wholly for them alone.

pastoral or in part agricultural and to the residuo

pastoral.” The same learned judge expressed serious doubts IN THE case of Pollock v. Garle the Court of Appeal (LINDLEY, whether the tenant, after giving up the arable land at MartinM.R., and CHITTY, L.J.) have placed a necessary limitation mas, remained in possession of any holding within the meaning upon the generality of section 7 of the Bankers' Books Evidence of the Act; the bare possession of a barn, barnyard, and two Act, 1879. Under the section the court may, on the application would not, he thought, be possession of a holding. In Morley

cot-houses unconnected with pastoral or agricultural land of any party to a legal proceeding, order that such party be at liberty to inspect and take copies of any entries in a banker's . Carter the court had to deal with a case where all the land book for the purpose of the proceedings. It might be supposed being retained (under the agreement for tenancy) until May,

had been given up in February, certain farm buildings only that the section contemplated the inspection of entries relating and the notice of claim being given in the interval, but more to the account of a party to the proceedings, but it is not ex- than two months before the buildings were to be surrendered. pressly so limited, and it leaves the door open for an application WRIGHT and KENNEDY, JJ., decided that the notice was out of such as was made in Pollock v. Garle. The action was brought time, there being no "holding” left in the possession of thọ for rescission of a contract to purchase shares on the ground tenant. that the vendor had made a misrepresentation as to the financial Watson to which attention has been called. It is somewhat

In so deciding they followed the dictum of Lord position of the company. Oce of the misrepresentations alleged strange that when these Acts were passing through Parliament was that on a given date the company had a specified amount no definite provision was made for cases such as these, which standing to its credit at its bankers. An obvious way of testing the truth of this assertion was to obtain an order constituencies. The result of the authorities seems to be, that

must have been familiar to the representatives of agricultural for inspection of the banker's books, and such an order the two months' (or in Scotland four months') period must be was made by KEKEWICH, J., under section ? of the Act. reckoned back from the date on which the last piece of agriBut however convenient such a proceeding might be to the cultural or pastoral land is given up, but that upon that date plaintiff, it was naturally distasteful who were no parties to the action. A plaintiff does not by although buildings may still be held over. It appears also

the company. the whole tenancy is determined for the purposes of the Act, merely bringing his action entitle himself to exact information from the two earlier cases that the claim of which notice is given from strangers, and whatever rights he may have at the trial, it would be very oppressive to give him these facilities for the may relate to the whole of the holding, and not merely to the purpose of preparing his case. The Bankers' Books Evidence part which is still retained. The questions involved are diffiAct, however, does no more than vest a discretion in the court to cult, and will probably be considered by the Legislature before make an order under section 7, and there is no need to exercise this discretion in a case where the plaintiff is seeking information to which he is not properly entitled. So, accordingly, the IN THE recent case of Shaw v. Lutman (ante, p. 34) the oftCourt of Appeal held, and reversed the order of KEKEWICH, J. considered question-namely, at what stage of the proceedings Only in very exceptional cases will an order be made under the must an intending appellant from the decision of a county court Eection for inspection of the account of a stranger to the action. request the judge to take a note-again arose. There, the

county court judge having stopped the case as soon as the mere

facts had been stated, and directed judgment to be entered for THE CASE of Morley v. Carter (ante, p. 14) decided a point of the plaintiff, the defendant's counsel asked the judge to take a practical importance under the Agricultural Holdings Act, 1883.note, which, however, the latter declined to do, on the ground Section 7 of that Act requires a tenant claiming compensation to that the request was made too late. It was, however, held by give notice in writing to his landlord of his intention to make the Queen's Bench Divisional Court (WRIGHT and BRUCE, JJ.) such a claim “two months at least before the determination of that the county court judge was wrong in refusing to take a the tenancy. It frequently happens that, by the terms of his note under the circumstances above stated. This decision is, tenancy, or by the custom of the country, a tonant is entitled to we think, fully justified by the language of section 120 of the give up possession of a part of his holding upon one date and County Courts Act, 1888, which, it will be remembered, replaces

long.

[ocr errors][merged small][ocr errors][merged small][merged small]

the provision contained in section 6 of the repealed County on the criminal law of England state that a prisoner charged Courts Act, 1875, and now governs the right of appeal to with felony must be present in court during the whole of his the High Court from the county court. It is thereby pro- trial. Sir JAMES STEPHEN, however, says, in his Digest of vided that, " at the trial or hearing of any action or matter the Law of Criminal Procedure, that if a prisoner misconin which there is a right of appeal, the judge, at the request ducts himself in such a manner as to make it impossible to try of either party, shall make a note of any question of law raised him with decency, the court probably has power to order him at such trial or hearing, and of the facts in evidence in rela- to be removed and the trial to proceed in his absence. The tion thereto, and of his decision thereon, and of his deci- learned author states that he had never heard of a case in sion of the action or matter.". Now, certainly, this provision which this was actually done, but that Lord CRANWORTH, when is somewhat ambiguous, as it does not state in so many words ROLFE, B., threatened to have Rush, the Norwich murderer, at what time the prescribed request must be made. It has, removed if he persisted in a singularly indecent course of crosshowever, been held that a point of law must be raised first, and examination. He also mentions a case in which a convict at moreover, that, if there be more questions of law than one, the Portland was tried at Dorchester for the brutal murder of one request to take a note must be made in respect of each (Reg. v. of the warders of the prison before SHEE, J., then sitting City of London Court, 70 L. T. 595). Obviously, therefore, in as commissioner. This prisoner behaved with such extraordithe case under consideration, the defendant could not have made nary violence that the judge had to give orders for him to be his request earlier than he didnamely, when the judge, after fastened with chains or straps, and also it is believed) to be hearing the facts, directed judgment to be entered for the gagged, before his trial could proceed. Not even in such a plaintiff, for, till then, no question of law appears to have arisen. case, however, was he removed from the court; and probably It seems to us, however, that the whole subject of when the request most persons will agree with Sir J. STEPHEN that, in a trial to take a noté must be made should be reconsidered by the Logis involving the penalty of death or any severe punishment, the lature, as, save where a definito point of law arises at the outset of prisoner should not be removed until every other possible the trial, the difficulty of literally complying with section 120 of measure has failed. In charges of misdemeanour, on the other the County Courts Act, 1888, as interpreted by the High Court hand, the authorities agree that, the accused having pleaded in in Reg. v. City of London Court (supra), is obviously very great. person, the trial may proceed in his absence. There have been The statute seems to suppose that the point of law may be stated instances of this, but they are very rare. In the famous Tichat once at the trial and then a note taken of all the evidence ; borne case, for example, the defendant was one day taken ill in but it is obvious that a point of law may arise in the course of the course of the trial, and was allowed to leave the court until the case, or it may arise afterwards at the very end, and when his recovery, the trial meanwhile proceeding in his absence. the evidence has all been taken (see per BRAMWELL, L.J., in Probably, even in this case of misdemeanour, however, the trial Morgan v. Rees, 25 W. R. 213, 6 Q. B. D., at p. 513): It is, would have been adjourned if the defendant had objected to its indeed, true that, under R. S. c., ord. 59, r, 8, the High Court proceeding in his absence. has power

to admit

any

evidence or statement of what occurred in the county court other than the judge's notes. This, however, can only be done when a request for a note has previously As is well known, an annual capitation grant is made by the been made at the proper time in the county court itself (Cook v. Government to every volunteer corps in Great Britain in respect Gordon, 61 L. J. Q. B. 445), and therefore does not meet the of each member of the corps who makes himself “efficient” exigencies of appellants from the county court, who, we think, during the year. Since, therefore, it is a serious pecuniary loss should be entitled, in every case above £20 at all events, to re- to the corps for a member not to become efficient, probably quest the judge to take a note of the evidence before any point of every corps has adopted a rule under which a volunteer who law has actually arisen, if, in the opinion of the counsel or fails to earn the grant is bound to pay to the funds of the corps solicitor on either side, one or more points of law are likely to a sum equal to that which he ought to have earned. There has, arise. Where the parties appear in person the facts are not however, been a considerable difficulty in recovering these usually such as give rise to appeals, and therefore may fairly be sums. The rule purports to be made under section 24 of the left out of consideration, especially as in such cases the judge Volunteer Act, 1863, which provides that, subject to certain would, in the event of a doubtful point of law arising, mero requirements, '“ the officers and volunteers belonging to a motu suggest and facilitate an appeal if necessary.

volunteer corps may from time to time make rules for the management of the property, finances, and civil affairs of the

corps. By section 27 it is enacted that “if any person ONE OF the most extraordinary scenes over witnessed in a court belonging, or having belonged, to a volunteer corps neglects or of justice occurred on Taesday last in the Assize Court at refuses to pay any money

due under the rules of such Northampton. The court is one of those in which the whole corps and actually payable by him, or to pay any fine incurred well is filled by a very large table round which counsel and þy him under the rules of such corps, such money or fine shall” reporters sit. A man named BERRY was put in the dock be recoverable in a summary manner before justices. In Reg. charged with burglary. The substance of the indictment was ». Lewis and Mo88 (1896, i Q. B. 665), however, the LORD read to him, and he had just been asked in the usual manner CHIEF JUSTICE and WRIGHT, J., held that there was no power whether he was guilty or not guilty, when, with a yell, he leaped under section 24 to make such a rule, as it was not a rule for over the front of the dock and over two rows of counsel on to the management of the property, finances, or civil affairs of the table, apparently making straight for the judge. He fell on corps. This decision was felt to be a very serious matter for his hands and knees, but was up in an instant with his hands to many corps, and accordingly the Volunteer Act, 1897, was his trousers, some say with the intention of tearing them off, passed, which came into force last August. In order to some say with the intention of getting something out of his remove doubts, it is declared by that Act that the power pocket. One of the barristers present, however, sprang upon to make rules under section 24 of the Volunteer Act shall the table and seized the desperate man, and was joined by one or extend, and be deemed to have always extended, to rules for two of his learned friends. The strange sight was then seen for securing the efficiency of the members of the corps, and that a short time of a couple of barristers in wigs and gowns fighting a fine for the breach of any rule made under the aforesaid with a prisoner on the table of the court. Of course the section shall be

of

money recoverable on warders and police soon reached the table, and the man was plaint to a court of summary jurisdiction." As this Act is removed, struggling, violently and shrieking, blasphemies. clearly retrospective, it is possible to take advantage of Wills, J., the presiding judge, ordered the trial to be post- it at once, although the matter complained of may have poned till the next day, and directed that the prisoner should occurred before the Act was passed. Accordingly, a batch of then be put on his trial in fetters. Next day the ruffian was summonses were heard a few days ago at the Worship-street brought before the court, but he was so obstreperous that the police-court against members of a Middlesex corps who had learned judge ordered him to be sent below, and the trial to failed to make themselves efficient during the past year, and proceed in his absence. This is certainly a very unusual orders were made for payment of the sums claimed. Some of course; probably unprecedented. Almost all the authorities those against whom proceedings were taken defended them

[ocr errors]

.

.

a

sum

com

selves on the ground that they had resigned before the year in a single sum of £3 was reserved as an additional rent for every question had begun, but they were in several cases surprised to ton of hay or straw sold away from the demised premises, and tind that these resignations were not good. It is well for every since there was a difference of 48. or 58. por ton in the manurvolunteer to remember that, under section 7 of the Volunteer able value of hay and straw, it was held that the damages for Act, 1863, he can only quit the service after giving his com- breach of either part of the stipulation were substantially manding officer fourteen days' notice in writing of his intention, different, and hence the additional rent was a penalty. Prodelivering up all arms, &c., issued to him which are the probably a similar difference existed between the stipulations conperty of the corps, and paying all money due by him under the tained in the agreement in Clarke v. M' Turk. The easiest way rules of his corps. Further, it should be noticed that these of escaping from liquidated damages is to find a stipulation bums payable because of failure to become efficient are recover- involving the payment of a fixed sum less than the amount of able under the Act of this year as a civil debt by complaint, the damages. Whether this occurs by itself or as one of a and not by information.

bundle of stipulations, it at once turns the damages into a penalty (Wallis v. Smith, 21 C. D. 256). But in drawing an

agreement it is perfectly safe to insert a sum as liquidated A CORRESPONDENT calls our attention to the recent case of damages, provided it applies only to the breach of a single Clarke v. M Turk (reported in the Times of the 9th inst.), in stipulation the damages upon which are in their nature not wbich BIGHAM, J., decided, on the authority of Willson v. Love ascertainable. (44 W. R. 450 ; 1896, 1 Q. B. 626), that a sum specified in an agreement to be recoverable as líquidated damages was in fact to be treated as a penalty; and he suggests that Willson v. Love

THE REAL REPRESENTATIVE. does not really support the decision. Possibily, however, our

I. correspondent has not noticed that the sum was stated to be recoverable, not only in the event of a breach of the stipulation WITHOUT calling, in question the principle involved in the conwhich was in question in the case, but also of any of the stipu- stitution of a real representative, some remarks with regard to a lations of the agreement on the part of the plaintiff to be few of the difficulties arising on Part I. of the Land Transfer performed ; and it is probable—though the report of the case, Act, 1897, which comes in force after the 31st of December which is very short, does not show this—that such stipulations next, may be of service to the practitioner. were of varying degrees of importance. If so, the authority of

We must confess to a feeling of great surprise that a reform Willson v. Love seems to be exactly in point, and the sum was law as well as the practice at the Land Registry, was not affected

involving such far-reaching results, and affecting the general rightly treated as a penalty. The plaintiff in Clarke v. M Turk had been in the employ of the defendant as instructor in the in a form less open to grave objections and doubts than that defendant's school of fencing, under an agreement which con

embodied in the Act of this year. tained a clauso restraining the plaintiff from competing with the

Because no objection was taken to the form of the corresponddefendant after he had left bis employment. For the performing clauses in the Land Transfer Bill of 1895 in the Select ance of this clause and all the other provisions of the agreement on have been considered that the clauses might be left to take care

Committee of the House of Commons of that year, it seems to the part of the plaintiff, the plaintiff bound himself in the sum of themselves. It will be observed, however, that the expert damages, and not as a penalty. The plaintiff left the defendant witnesses who were examined before that committee confined and started a fencing school of his own within the prohibited their attention to the practical working of the register, and at limits, and on his suing for arrears of salary, the defendant most gave a general assent to the principle underlying these counter-claimed for £1,000 as payable upon breach of the clause

clauses. against competition.

The sections in the Act of this year relating to the real representative have been taken, almost verbatim, from clausos

72 and 74 of the Bill of 1888. At that time it was proposed to Had the sum mentioned in the agreement in Clarke v. M'Turk assimilate the devolution of the beneficial interest in land on been reserved solely upon a breach of the clause against com- the beneficial rights of the heir-at-law are, it seems, intended to

death to that of personal estate.

In the Act of 1897, however, petition, it seems clear that it could have been recovered as liquidated damages. In respect of a breach of a stipulation the remain unchanged. damages upon which are of an uncertain amount, there is

Now, it may be fairly predicted that many of the difficulties nothing illegal or unreasonable in the parties, by their mutual to which these sections give rise would never have appeared had agreement, settling the amount of damages at any sum upon scissors and paste had been tempered with a little more

this change in policy been borne in mind, and the use of which they may agree (per TINDAL, C.J., in Kemble v. Farren); and for a breach of a stipulation against competition in trade,

discretion. tho parties may consequently fix the damages at £1,000 or any in real estate on death" had, when used in the Bill of 1888,

The marginal note to section 1, “Devolution of legal interest other sum they choose. With this rule we do not

suppose Justice Bigham intended at all to interfere. But in spite of the some meaning, inasmuch as the next clause related to the sound principle laid down by JESSEL, M.R., in Wallis v. Smith

"succession to beneficial interest in real estate on intestacy,” but (21 Ch D., p. 266), that the courts of law ought not to overrule tho note is now merely misleading. any clearly-expressed intention on the ground that the judges

Again, there might be some excuse for making real estate know the business of the parties better than the parties know it vest in the personal representative, when the beneficial interest themselves, certain exceptions have been allowed, and one is was, on an intestacy, to devolve as personalty. that where the same sum is reserved as damages for the breach

We must not, however, be understood as impeaching the of several stipulations of varying degrees of importance, such decision to leave to the heir his beneficial rights; we have sum is to be treated as a penalty. As to the extent to which reason to believe that the cases where injustice is done by the stipulations must vary, the cases differ. It would seem permitting the heir to take are now very rare, whereas the infrom Wallis v. Smith that for the sum named to be turned convenience of splitting up the real estate between the statuinto a penalty, some of the stipulations upon a breach of tory next-of-kin, particularly where the property is not ripe for which it is made payable must be of only trivial importance. sale, is obvious ; at the same time it must be admitted that the So in Lord Elphinstone v. Monkland Iron Co. (11 App. Cas., creation of a real representative smooths away the principal

difficulties. at p. 342) Lord Watson speaks of “events, some of which may occasion serious, and others but trifling, damage." But

Next, to consider the construction of the Act, section 1 (1) is in Willson v. Love Lord ESTER, M.R., interpreted these words as

as follows: equivalent to "some of which may occasion serious, and others 1. (1) Where real estate is vested in any person without a right in any less serious, damage," and according to this last case the sum ing any testamentary disposition, 'devolve to and become vested in his

other person to take by survivorship, it shall, on his death, notwithstandmentioned is to be treated as a penalty wherever there is a personal representatives or representative from time to time as if it were substantial difference between the various stipulations. Thero / a chattel real vesting in them or him.

Contingent Interests.—“Where real estate is vested.” This Sufficient has now been said with reference to the first subexpression is ámbiguous; can a contingent interest in real section of the new Act to show that, even in everyday matters, estate be said to be vested in anyone? (See Challis, 2nd ed., doubts must necessarily arise which cannot well be disposed of p. 64 et seq.). Suppose the condition which must be fulfilled without the assistance of the courts. Even viewed from the before A. takes an estate in fee is fulfilled after A.'s death, does standpoint of registration, the sub-section is far from faultless, the land pass to A.'s personal representatives? But see Good- and we confidently submit that the interests of registration have eve, R. P. 4th ed. p. 240 note (o).

not been well served by rendering it impossible for practitioners Estates tail or for life. An estate tail and an estate for life to advise definitely on really elementary points of the general may be said to be vested in a person so that on the death of a law. tenant in tail or for life the feo simple may, under the section, Now to consider sub-section 4, which runs thus : pass to the personal representative. This may be a very desir "(4) The expression 'real estate' in this part of this Act shall not be able reform if properly carried out, as, for instance, in the Con- deemed to include land of copyhold tenure or customary freehold in any veyancing Bill put forward by the Incorporated Law Society case in which an admission or any act by the lord of the manor is necesduring last session, but the absence of any proper machinery to sary to perfect the title of a purchaser from the customary tenant.” give effect to it points irresistibly to the conclusion that it could This, it will be observed, is the only definition of "real not have been intended.

estate," and it is a negative one. Moreover, the words, “notwithstanding any testamentary

We raise no objection to the exclusion of copyholds; that disposition,” might lead one to suppose that the section was seems to be in accordance with the present policy of the law, directed only to those cases where the deceased had power to with a view to oncourage enfranchisement; and we venture to dispose of the real estate by will, but if the construction placed think that copyholders will be well pleased, at any rate for the by the Court of Appeal on a similar phrase (see Re Scott and Al. present, with the exclusion. But what is the meaning of "real varez's Contract, 1895, 2 Ch. at pp. 611-612) is followed, these estate"? words must not be taken as cutting down the scope of the section.

Estate

pur

autre vie.--An estate for the life of another person, Remaindermen.-Again, where an estate in remainder is vested, where the heir is special occupant, is not strictly "real estate," does the estate in remainder pass on the death of the re so that it may still pass to the heir or devisee, except where it is mainderman ?

a trust or mortgage estate. Trust and Mortgage Estates.- In the Bill as originally drawn,

Right of re-entry.- Whether a right of re-entry for condition section 30 of the Conveyancing and Law of Property Act, 1881, broken or otherwise, and the interest under a covenant to invest was to be repealed. This was, we think, rightly struck out, par/ money in the purchase of land, are within the section, must at ticularly having regard to the fact that this Act does not apply least be doubtful. to the equitable interest in copyholds, but room for doubt is still

Personal inheritance.- Where, for instance, an annuity is left as to whether such trust and mortgage estates as are "real limited to A. and his heirs, this is a hereditament within estate which is vested in a person without a right of any other section 30 of the Conveyancing and Law of Property Act, 1881, person to take by survivorship,” do not in fact devolve under but, though it ought to be made to pass to the real representathis section. If they do, then the absence of any provision tive, it clearly does not. making the personal representatives heirs and assigns within

Chattels real.As "real estate" is to rest as if it were & the meaning of trusts and powers, will—for instance, where a chattel real, it seems that the expression cannot here include power of sale is given to A. (a trustee) and his heirs, and A. chattels real. These devolve, therefore, on the personal repredies-render it necessary either to appoint a new trustee or to sentative under the existing law. join the heir of A. with his personal representatives in order to make a title; the power in fact would not devolve on them

It will be a matter for surprise that, although Part I. of the though the estate did (see Re Morton & Hallett, 15 Ch. D. 143.)

Act is headed “Establishment of a Real Representative,” the Right of survivorship. The words *“ without a right in any section does not even enable the appointment of one, but makes other

the person to take by survivorship" prevent the estate of a

personal representative in that character real representative, joint tenant or a tenant by entiroties from passing to the and constitutes him real representative where there is no perpersonal representative, but can have no bearing on the question sonalty, and where he cannot proporly be personal representaas to whether life estates or estates tail are affected by the tive : 800 Re Parker': Trusts (1894, 1 Õh. 707, 722); also Roll v. section.

Osborne (Hobart's Reports, 3rd ed., p. 25). Settled land which is registered.-- On the death of a tenant for

One result is that there cannot be a real representative apart life of land which_is registered in his name after 1897 (see from the personal representative. This is most inconvenient. section 6 (8) of the Land Transfer Act, 1897), and assuming that Thus a testator may wish to leave all his personal estate to his unregistered land does not pass on the death of a tenant for wife and appoint her executrix, and to leave his land to trustees life under section 1, then nothing passes to his personal ro

on trust. He cannot make his wife executrix without vesting presentatives. Where, however, the land is registered in his the land in her, and he cannot vost the land in the trustees name before 1898, it is not clear what will happen.

without making them joint executors with his wife. It may be that (se0 Land Transfer Act, 1875, ss. 7 and 8) the

Another result is that, when real representatives convey, and foo simple is, on registration with an absolute or possessory proper covenants for title are to be implied, the real representatitle, vested, in this case, in the tenant for life, subject to tho tives will have to convey as personal representatives ; surely the incumbrances, if any, paramount to the settlement, the rights executors of the real estate should in that character' have been of remaindermen and other persons claiming under the settle

callod real representatives and should have been enabled to ment being left to take effect as mere unregistered equities. If convey as such? this is so, then the fee simple will, on the death of the tenant

It may be taken, then, that the operation of this section is so for life, vest in his personal representatives, who will, if required, obscure, except perhaps where a person dies who was solely entransfer, by the direction of the trustees of the settlement, to the titled to freehold land for an estate in fee simple in possession, person next entitled, and he will accordingly be registered, with that the profession may, it is hoped, look forward with some or without restrictions, as the state of the title may require. confidence to its repeal and re-enactment in an improved form An actual transfer or conveyance, except to get in the legal

at an early date. estate, will not, however, be necessary (see Land Transfer Act, 1897, 8. 6 (4)). The question, however, seems to depend on whether section while ago a certain case in which Irish bacon-curers were interested were

Jumping to conclusions, says the Globe, is a mischievous habit. A little 6 (8) doos or does not operate to divest the fee, if any, acquired adjourned sine die in consequence of the illness of counsel. by a tenant for life before 1898. Possibly, with a view to men present, linking " illness" and "die,” at once telegraphed to Belfast create uniformity of practice, that sub-section, though it con- that the counsel was dead. Yesterday the counsel, in applying for a new tains no express provision as to divesting, may be held to have hearing, had to explain that he was not dead; which must always be an that effect, subject, of course, to any intermediate dealings by the threatened that he would now proceed to

embarrassing thing to do. The incident recalls the Indian barrister who heir or devisee of the tonant for life.

expose the cui bono in all its naked borror."

Some Irish.

protect those officers who are legally authorized to take declarations. REVIEWS.

-I am, sir, your obedient servant,

(Sd.) GEO. L. WINGATE, Solicitor and Commissioner for Oaths. BOOKS RECEIVED.

To The Right Hon. Joseph Chamberlain, M.P., H.M. Secretary of An Epitome of Leading Conveyancing and Equity Cases, with State for the Colonies, Downing-street, S.W. some Short Notes thereon, chiefly intended as a Guide to " Tudor’s Leading Cases on Conveyancing," and "White and Tudor's Leading Cases in Equity." By JOHN INDERMAUR, Solicitor. Eighth Edition.

Downing-street, 11th November, 1897. Stevens & Haynes.

Sir,-I am directed by Mr. Secretary Chamberlain to acknowledge

the receipt of your letter of the 2nd inst. in which you call attention The Annual Practice, 1898. Being a Collection of the Statutes, to the fact that the regulations made by the Canadian Minister of Orders, and Rules relating to General Practice, Procedure, and Juris- Customs under the Dominion Tariff Law, 1897, allow declarations of diction of the Supreme Court. With Notes, Forms, &c. By THOMAS origin to be made before persons other than notaries, justices of the SNOW, M.A., Barrister-at-Law; CHARLES BURNEY, B.A., Master of peace, and commissioners for oaths. the Supreme Court; and FRANCIS A. STRINGER, of the Central Office,

In reply, I am to inform you that the matter is one in which Mr. Royal Courts of Justice. In Two Volumes. Sweet & Maxwell Chamberlain is unable to interfere, as the Dominion Government (Limited); Stevens & Sons (Limited).

must be allowed to exercise its own discretion as to the nature of the Pratt's Law of Highways, Main Roads, and Bridges. In Two regulations which it may consider necessary for securing the proper Parts. I. Law of Highways Independent of Statute ; II. Statutes observance of the provisions of the Tariff Law. I am, sir, your relating to Highways, Main Roads, and Bridges. Fourteenth obedient servant,

(Sd.) JOHN BRAMSTON. Edition. By WILLIAM MACKENZIE, M.A., Barrister-at-Law. Shaw G. L. Wingate, Esq. & Sons; Butterworth & Co.

Snowden's Police Officers' Guide; with an Epitome of the Police (England) Acts; the Police Act, 1890; the Criminal Law Consolida

DESCRIPTION OF WITNESS. tion Acts; the Licensing Acts; the Summary Jurisdiction Acts; and & Digest of Recent Circulars of the Secretary of State. Tenth

[To the Editor of the Solicitors' Journal.] Edition. By T. 0. HASTINGS LEES, Esq., M.A., Barrister-at-Law. Sir,-Knowing the great interest which you take in all matters Shaw & Sons ; Butterworth & Co.

legal, I should like to draw your attention to a case which in my A Compendium of the Law relating to Executors and Adminis- experience is absolutely unique in the attestation of legal docutrators, with an Appendix of Statutes, Annotated by means of Refer- ments. ences to the Text. By W. GREGORY WALKER, B.A., and EDGAR J. Readers of your able journal are well aware of the care which is ELGOOD, B.C.L., M.A., Barristers-at-Law. Third Edition. By always exercised by solicitors and their clerks, when sending docuEDGAR J. ELGOOD, B.C.L., M.A. Stevens & Haynes.

ments by post to their clients, to explain fully what is necessary to be With copious Notes and an Index containing the Employers' Liability ing witness to the grantor's execution is a lady. She was doubtless The Workmen’s Compensation Act, 1897 (60 & 61 Vict. c. 37). done to perfect the execution of the deed.

A conveyance has recently come into my possession, and the attestAct, 1880. By_W. ADDINGTON WILLIS, LL.B. (Lond.), Barrister-at Law. Second Edition. With additional Notes. Butterworth & Co.; an indicated spot. The name and address apparently gave the lady

instructed to "sign her name and add her address and description" in Shaw & Sons.

witness no trouble—any member of the fair sex can write her name and address.

But the description! That must have puzzled her. * Complexion

fair, eyes blue, hair dark brownare the words by which the CORRESPONDENCE,

bewildered lady described herself in the deed of conveyance! STATUTORY DECLARATIONS AS TO GOODS UNDER THE Curiously enough she did not add her age—that was evidently CANADIAN REGULATIONS UNDER THE CUSTOMS TARIFF, indescribable in one of the fair sex.

CHARLES J. Fox, 1897.

7, Gt. St. Thomas Apostle, E.C., Nov. 17. [To the Editor of the Solicitors' Journal.] Sir,-By the enclosed copy of correspondence it would appear that the Dominion of Canada, acting by the Minister of Customs, can

FEE OF PROFESSIONAL WITNESS, authorize declarations to be made and subscribed in England

[To the Editor of the Solicitors' Journal.] relating to goods exported from England, before persons not other

Sir, --Last sittings a professional witness was served with a subpoena wise authorized to take declarations. This would seem to call for and a fee of £1 1s. paid him. The case will not now be reached until comment.

GEO. L. WINGATE. next sittings. Is he entitled to a further £1 18. fee ? 8}, Angel-court, Throgmorton-street, E.C., Nov. 15.

He does not wish to put the parties subpoening him to the expense The following correspondence is enclosed :

of a fresh subpæna, but contends that he is entitled to the £1 1s. paid

last sittings for expenses in watching the case. 8}, Angel-court, Throgmorton-street, London, E.C.,

Can you tell me what the law is upon the subject ?
2nd November, 1897.
London, E.C., Nov. 17.

MARK LANE. Sir,- In July, 1897, the Canadian Minister of Customs made regulations under the Customs Tariff, 1897. That:

[Perhaps some of our readers can give some authority, as we have Persons entering, goods under the Canadian Reciprocal Tariff of not found any. By the light of nature, one would suppose that if 1897 should furnish an invoice of the articles, with a declaration the witness was required to be actually present in court last sittings annexed thereto from the exporter made before a commissioner for he would be entitled to the £1 1s. for his loss of time; and a further taking oaths, and among others the secretary of a chamber of com fee would be payable in respect of his next attendance. Otherwise merce, as to origin and value of the articles in the form then pre- he does not appear to have yet earned his guinea.-ED. S.J.] scribed, which form states the declaration is to be “gubscribed and declared " in the usual way.

I drew the attention of the Commissioner of Customs to the fact that declarations in this country can only be made before notaries,

THE LAND TRANSFER ACT. justices of the peace, and commissioners for oaths, properly ap

[To the Editor of the Solicitors' Journal.] pointed, and that treasurers and secretaries of a chamber of commerce

Sir, Mr. J. M. Lely, in the letter to the Times, which is reprowere not as such so authorized. I learn now that the High Commissioner of Canada has received a

duced in your issue of the 13th inst., p. 35, does not quite carry the telegraphic intimation from the Minister of Customs that exporters

point to its logical conclusion. may make declarations of the origin of goods before any witness, of a county as defined by the Local Government Act, 1888 ; there is

Compulsory registration can be applied only to a “county” or part such as an employee of the exporter. I submit that the Canadian authorities have no right to authorize no positive definition of county” in such Act; therefore compul

Q. E. B. any witness ” to take declarations in this country, even when such sory registration cannot be applied at all! are to be acted upon in Canada.

If a declaration be required upon which perjury could be assigned, then the same ought only to be made before a proper officer duly authorized. If a certificate under hand only is to suffice, then the Mr. Upjohn, Q.C. (one of the recently-created Chancery silky), has document should not be “declared, &c."

elected to practise permanently in the court of Mr. Justice Stirling. I think this is of sufficient importance for the proper department Mr. Baron Pollock, having lost his voice, was unable to sit at Chelmsof the Colonial Office to inquire into and take the necessary steps to ford Assizes on Monday. His place was taken by Mr. Justice Channell,

« PreviousContinue »