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shifting property would be void as against the policy of law, OPTIONS TO PURCHASE IN LEASES AND THE RULE whether for remoteness or otherwise, a contract tending to AGAINST PERPETUITIES.
produce a like effect is equally void, and vice versa. An instance II.
of this is afforded in the case of contracts and conditions in In the last number it was submitted that covenants in a lease general restraint of marriago : see Low v. Peers (Wilmot 364),
Law Quarterly Review xii. 36, where the authorities are giving the option of purchasing the reversion are not exempt collected.
T. CYPRIAN WILLIAMS. from the rule against perpetuities; and the reasons for holding this opinion were stated. We will now consider one or two subordinate points connected with the same subject. Taking as our text a lessor's covenant contained in a lease for
THE LAND TRANSFER RULES, more than twenty-one years (independent of life) and giving to
X. the lessee an option to purchase the reversion, it has been submitted that if the covenant give the option of purchasing Part 111. (continued).-- Adaptation to incumbrances prior to regis. from the lessor, without mention of his heirs or assigns, it is tration, and to sub-mortgages, of the provisions of the Act of 1875 with personal to him and enforceable in his lifetime only: Stocker v: regard to charges.-Rules 118 to 123, which are made pursuant Dean (16 Beav. 161). Such a covenant, therefore, does not offend to section 22 (6) (c) of the Act of 1897, appear to be well devised against the perpetuity-rule. So also if the option be given to for carrying out the objects in view. Thus where registration the lessee only, without mentioning his executors, administrators, is made subject to incumbrances, those incumbrances when or assigns. But if the covenant give to the lessee, his executors, entered on register will thereafter be dealt with as if they administrators, or assigns the option of purchase from the lessor, had been originally created by means of a registered charge. his heirs or assigns, is it enforceable, either specifically or in Where, however, the incumbrance is of such a nature that it damages, against the original covenantor ? The case would seem cannot readily be given effect to by means of a registered to fall within the well-settled principle that, where some of the charge, it is conceived that notice of the incumbrance in the stipulations in a contract are illegal and others legal, then, if the case of an absolute title will be entered instead of registering it, stipulations are severable, the legal part of the contract may be and the incumbrance will continue to be dealt with off the enforced : Mallan v. May (11 M. & W. 653); Price v. Green register. The consent of the incumbrancer is requisite to its (16 M. & W. 316); Nicholls v. Stretton (10 Q. B. 346). If the registration, and notice is to be given to the registered prolessor covenant that he, his heirs or assigns, will sell, why prietor of the land of the application to register. Inasmuch as should not the stipulation that he himself shall sell be separated the registration of a proprietor with a possessory title does not from that which purports to bind his heirs and assigns? If so, affect incumbrancos existing at the date of registration, notthe covenant, as regards this stipulation, must be performed (if withstanding no notice of them is entered on the register, it is at all) in the covenantor's lifetime : see Stocker v. Dean; and apprehended that, as a general rule, such incumbrances will should therefore be enforceable against him specifically, or a not be registered. The power for the registered proprietor of a breach by the covenantor himself should give rise to an action charge to create a sub-charge (rules 121-3) which will entitle for damages. This contention appears to be further supported the sub-chargee to have a certificate, is new, and undoubtedly by the doctrine under which a gift over, following a limitation supplies a want. void for remoteness but expressed to take effect in one of several Transmissions of land and charges on death.—The personal alternative events, of which some conform to and others offend representative of a sole or sole surviving registered proprietor against the perpetuity-rule, is held to be severable and to be of land or a charge dying after 1897 is to be registered on provalid, if the event conforming with the rule be that which duction of probate or letters of administration. He is to be happens : see Longhead v. Phelps (2 W. Bl. 704), Evers v. Challis described as "executor (or administrator) of deceased," (7 H. L. C. 531), Miles v. Harford (12 Ch. D. 691, 703, 704), and if an executrix or administratrix is a married woman that and 1 Jarm. Wills, 5th ed., 255-259.
fact is to be stated. The last provision is probably due to the But supposing there be no breach of such a covenant in the inability of a married woman trustee to pass the legal estate in original covenantor's lifetime, is a breach by the covenantor's freeholds except with the concurrence of her husband and by a heirs or assigns a good cause of action on the covenant? If so, deed acknowledged : Re Harkness and Allsopp (1896, 2 Ch. 358); the covenantor's heir or devisee refusing to perform the covenant This decision would not, we conceive, apply to registered land might find himself liable to an action on the covenant. It has in any other case than that of an executrix so far as regards been previously submitted that the covenant would not dispositions on the register, as a transferee for value would have be specifically enforceable against such heir or assign. no notice of a trust (Act of 1875, s. 83 (1), as amended) And it is further submitted that such a covenant, in Personal representatives can transfer without being themselves
far as it tends to create a perpetuity, is against registered (Act of 1897, s. 9 (6)), but the transfers cannot be the policy of the law and is therefore altogether void. registered until the personal representatives shew a title to be In Hope v. Corporation of Gloucester (7 De G. M. & G. 647) it registered to the satisfaction of the registrar (rule 144). was held that a covenant to renew a lease, after the expiration Å form of assent to a devise by a personal representative is of a term of thirty-one years, in favour of a person who would prescribed (First Schedule, Form 42). There may be a doubt not necessarily have any interest as lessee under the old lease, whether a married woman executrix can assent without the was not only not specifically enforceable, but invalid, as creating concurrence of her husband. Two of the rules bear the number & perpetuity. And that great master of the common law, 127, the second of them deals with registration when a settlePARKE, B., in delivering his opinion in Egerton v. Brownlow (4 ment is created by the will of, or otherwise arises in consequence H. L. C. 1, 125, 18 Jur. 71, 85) gave the following instances of of, the death of a sole registered proprietor. The personal contracts void for illegality, as being against the policy of the representative is at the proper time, with the consent of the law: "There are other cases in which contracts or provisoes tenant for life (if of full age), to deliver at the registry, a have been held to be illegal on principles long recognized by written application for the registration of a proprietor with the common law, such as marriage brocage bonds, conditions or proper restrictions and inhibitions. The proper time" would contracts not to marry, in restraint of trade, against alienation seem to be one year from the death (Act of 1897, s. 3 (2)) or as of land, including those violating the law of perpetuities.” soon thereafter as the estate is wound up. We conceive that no These authorities appear
to be directly in point. convoyance to uses need be executed by the personal repreThe case is, moreover, analogous to that of an unlimited sentatives, as their assent to the registration of the tenant for covenant nover to assign land, which appears, according life operates as an assent to the gifts in remainder : Stevenson V. to the better opinion, to be void as against the policy Mayor of Liverpool (L. R. 10 Q. B. 81). A tenanoy by the of the law: seo i Smith L. C. 185, 2nd ed., 419, 10th ed.; curtesy would seem to be an instance of a settlement arising in Poole's case (cited Moore 810), Jervis v. Bruton (2 Vern 251, consequence of the death of a registered proprietor. Co. Litt. 379 (6), Butl. note), MeLean v. McKay (L. R. 5 P. C. On the death of a tenant for life who is a registered proprietor, 327, 334). And it is submitted that, generally, the principle the Settled Land Act trustees are to apply for the registration laid down by PARKE, B., is correct, and where a proviso of the next remainderman (Act of 1897, s. 6 (4)). They and
their solicitor are to make a statutory declaration as to the state the firm in 1867. For many years Mr. RowCLIFFE carried on the of the settlement, and as to the proper restrictions and inhibitions large Common Law business of the firm, and amongst several wellto be placed on the register, or that none are necessary (rule known cases in which he was concerned were the Wyndham Lunacy 128). The registrar may require a certificate of counsel to case, which lasted over thirty days; the litigation which arose out support the declaration (rule 129). Where a declaration and of the American Civil War, including the flight of The Alabama ; the certificate (if required) are produced, the registrar is not to the seizure of the Rams under the Foreign Ealistment Act, during
Alexandra case, which went to the House of Lords; the question of require production of the settlement or any further evidence the American Civil War; and the case of the Attorney-General v, (rule 130). On the death of one of several joint proprietors, his Ryves, which involved a serious claim under the Legitimacy Declaraname is to be withdrawn from the register on production of a tion Act affecting the Crown. certificate of death or probate or letters of administration with In 1864 Mr. RowCLIFFE purchased the Hall-place Estate, near evidence of identity by statutory declaration, or such other Cranleigh, in Surrey. This estate he gradually extended and imevidence as the registrar may deem sufficient in each case (rule proved till at the date of bis death it consisted of upwards of 1,000 132).
acres, and the whole of this he farmed himself, taking a very keen Bankruptcy. --The rules contain provisions for the registration member of the Royal Agricultural Society and the Bath and West of
interest in everything connected with agriculture. Besides being a of the official receiver or of the trustee in bankruptcy (rules 133 England Agricultural Society, he was a meinber of the local to 135).. A transferee for value from the bankrupt before agricultural societies, at whose meetings and dinners he was a regular registration of the official receiver or the trustee will obtain a attendant and a speaker whose remarks were always listened to with good title (Act of 1875, s. 30). In the case of a company in great interest. He was also a subscriber to all the local charities fiquidation, any resolution or order appointing a liquidator and institutions, and had, in fact, arranged to preside at the annual may be filed and referred to in the register (rulo 136).
dinner of the West Surrey Benefit Society on the 26th inst. At Covenants for title. The covenants for title under the Con his own cost he erected two fountains, one in the village of Hascombe voyancing and Law of Property Act, 1881, may be introduced and one near the estate on the Guildford and Horsham road, which into instruments of transfer or charge (rule 139). Instruments proved a great benefit to the neighbourhood.
In politics Mr. ROWCLIFFE was a Liberal, but after the Home of transfer and charge are, however, retained at the registry Rule split became a Unionist. He was appointed a magistrate for (rule 153), so that where an acknowledgment and undertaking Surrey in 1880, a deputy-lieutenant in 1895, and he served the office as to title-deeds is given, it should be taken separately. It may of high sheriff for that county for the year 1895-6. He was a be doubted whether the implied covenants for title will be held member of the Surrey and Middlesex Society, the Uuion and Devon. to extend to matters which are declared not to be incumbrances shire clubs, the Surrey Magistrates and Guildford County Club, and by section 18 of the Act of 1875. To avoid the doubt, the form director of the Law Fire Insurance Society, the Legal and General
was a parish councillor of his parish of Hascombe. He was a of transfer should contain an express declaration that the Life Assurance Society, and the Law Reversionary Interest Society. coyonants for title are to apply.
He was also a member of the Incorporated Law Society and the Part 1.Minor entries in the register.-The Acts give no power Solicitors' Benevolent Association. for the registered proprietor, as such, to grant a lease by Mr. ROWCLIFFE was a staunch Churchman, and when at Hallregistered disposition or otherwise ; notice of a lease where the place was a regular attendant at Hascombe Church and a keen term is for life or lives or exceeds 21 years, or where the occu. supporter of the rector. pation is not in accordance with the lease, may be entered on the
Mr. ROWCLIFFE married in 1853 Caroline, daughter of the late register and operates as an incumbrance (Act of 1875, s. 50). Mr. CHARLES BAILEY, of Lee Abbey, Lynton, North Devon, and her In cases where an intending lessee investigates the title of his death, eighteen months ago, proved a severe shock to him. He left lessor (eg., where a fine is taken), he will require, in the case of Park Mr. and Mrs. RowCLIFFE entertained a large circle of friends,
no family. Both at Hall-place and at his London house in Regent's an absolute title, the title off the register to be shewn since the by whom, as by his relatives, his loss will be greatly felt. last registered transfer for value, and in the case of a possessory Mr. ROWCLIFFE was buried on Thursday, the 7th inst., in the title, in addition to that required in the case of an absolute title, beautiful churchyard of Hascombe, Surrey, by the side of his wife, an abstract of title to rights and interests paramount to the for the officiating clergy being the Archdeacon of Surrey, Canon Mussimple conferred by first registration. We conceive that an GRAVE (the rector of the parish), and the Rev. Dr. MERRIMAN, instrument creating a term to secure portions is a lease where rector of Freshwater, Isle of Wight. The funeral was attended by the occupation is not in accordance therewith, so that notice of a vast concourse of people of all classes, including numerous friends the term may be entered up.
from London; amongst those present, in addition to the mourners Provision is made as to notice of a lease (rules 157-8).
(who were the deceased's only surviving brother Mr. WILLIAM RowThe CLIFFE,
his nephews Messrs. WILLIAM CHARLES, EDWARD LEE, and notice in the register is to refer to a filed copy of the lease and HENRY SKIRROW ROWCLIFFE, Mr. RAWLE, General Sir EDWARD is to give the term, and may include such other short par- Williams, K.C.I.E., and Mr. HENRY SPARKS), being the High ticulars as may be conveniently entered.
Sheriff of Surrey, Sir R. E. WEBSTER, A.G., Q.C., M.P., and Miss Where the lease confers a right of pre-emption, this is to be WEBSTER, Sir John WHITTAKER ELLIS, Bart., Sir JOHN GOLDNEY, noted in the register; as to whether such right of pre-emption or Mr. H. R. GRAHAM, M.P.; Mr. J. HEYWOOD JOHNSTONE, M.P. option to purchase must be limited in compliance with the rule General ERSKINE, 'Mr. and Mrs. F. E. EASTWOOD, Colonel Weston,
Colonel GODWIN AUSTEN, Captain FISHER ROWE, Captain HASTINGS are on the same footing as leases (Act of 1875, s. 50 ; rules 157- | (Chief Constable), Mr. E. Č. HEALEY, Mr. CHADWYCK HEALEY, 160). The original lease or agreement is to be marked with a Q.C., Mr. T. T. METHOLD, Mr. CHARLES MUSGRAVE, Mr. G. F. note of the entry and is to be returned to the lessee.
GREGORY, Mr. ROGER GREGORY, Mr. John Dixon, and many others, while many other friends were unable to attend.
A correspondent, who has had the best means of judging of the THE LATE MR EDWARD LEE ROWCLIFFE.
late Mr. RowCLIFFE's powers of work, has sent us the following
observations : Mr. E. L. ROWCLIFFE was a “master” in every way, MR. EDWARD LEE ROWCLIFFE, to whoso sudden death we briefly re- but a thoroughly good-hearted one. In his early days at Bedfordferred last week, was the second son of the late Mr. CHARLES Řow- row the amount of work he got through was phenomenal. And be CLIFFE, J.P., of Stogumber, and afterwards of Milverton, Somerset, retained to the end this marvellous power of grasping and dealing himself a solicitor. He was admitted in 1817, and after working for with difficult and complicated matters in a very short space of time. some years as a managing clerk at No. 1, Bedford-row with the firm Although he rarely left his own room when in the office, one always of Gregorys, Faulkner, & Skirrow, in 1854 became a partner in the knew, without asking, whether he was there or not. If be was firm, the title of which then became Gregorys, Skirrow, & Rowcliffe, there, everything and everybody about him was going at the bighest his younger and sole surviving brother, Mr. WILLIAM ROWCLIFFE, possible pressure. Everyone who came in contact with him felt now the bead of the firm of Rowcliffes, Ruwle, & Co., becoming a bound to do his utmost; and you would rather do anything than fail partner in 1860 upon the death of Mr. John SWARBECK GREGORY, in accomplishing what he expected to be done. He was thorougbly the then senior partner and the father of the late Mr. GEORGE warm-hearted, and fully-appreciated good work from his staff, by BURROW GREGORY, so long M.P. for East Sussex. On the retire- whom he was very greatly esteemed. On the first day of last ment of Mr. CHARLES SKIRROW in 1861, in order to take up his year, on bis recovery from a severe illness, a basket of flowers was appointment of Solicitor to the Admiralty, the whole business sent to him from the clerks at No. 1, Bedford-row, accompanied by devolved on the late Mr. G. B. GREGORY, the late Mr. RƏWCLIFFE, a 'note containing their "respectful and earnest wisbes for his and his brother Mr. WILLIAM Rowcliffe, until Mr. RAWLE joined spredy recovery and for a bappy new year.” In reply Mr. Row
CLIFFE wrote: “Words fail me to thank you for the very beautiful leased to one of the large Scotch companies whose southern terminus present you have sent me and for the feeling which dictated it, and is in England, the Scotch company paying the shareholders of the the affectionate good wishes that accompanied it. I have been English company dividends dependent on those of the Scotch among you now over fifty years, and it is one of the greatest company. The principal office of the amalgamated companies is in pleasures of my life to recall the many mutual kindnesses which Scotland, and the secretary is resident there. A writ was issued, have passed between us during that time, and I sincerely share the the English solicitors of the companies undertaking to accept hope you so warmly express that we may yet be spared to one service. another for at least some years to come.”
On subsequent instructions, however, they declined to act, and an ex-Solicitor-General advised that in order to proceed with the action the secretary of the companies must be served in England. This
was impracticable, and my client was too poor to proceed in ScotREVIEWS
land. The result was, she was compelled to compromise the claim
on terms much less favourable to her than there was every reason INSURANCE.
to expect she would have obtained at the hands of an English THE LAWS OF INSURANCE : FIRE, LIFE, ACCIDENT, AND GUARANTEE. jury.
EMBODYING CASES IN THE ENGLISH, SCOTCH, IRISH, AMERICAN, July 11.
REGISTRATION OF TITLE.
[To the Editor of the Solicitors' Journal.] This book contains a statement, clear in form and concise in Sir,-I have read with great interest the articles on the Land language, of the various classes of insurance other than marine Transfer Rules which bave appeared in your recent issues, but there ineurance. Save in the case of life and accident insurance, indemnity is one important point to which I should like to invite attentionis the principle which underlies the contract of insurance. This viz., the assumption, prevailing throughout, and particularly in the principle, which is explained in the first chapter, carries with it the second article, that the statutory fee simple is not the legal estate. result that if, after receiving payment from the insurer, the insured This assumption seems to me incompatible with the rule, referred to is reimbursed from another quarter, he must repay the insurer. In in the sixth article, that there cannot be two common law fees existother words, he cannot use his policy so as to turn his Jogs into a ing in the same land. Moreover, it seems to me that an estate conprofit. Under Rayner v. Preston (18 Ch. D. 1) it seemed possible ferred by statute must be a legal estate, being one which, before the ihat the vendor of a house which is burnt down after the sale Judicature Acts, would have been recognized by the common law might be in this fortunate position, but Castellain v. Preston courts. For this reason I should contend that any legal estate exist(11 Q. B. D. 380) quickly deprived him of his advantage ing before registration becomes vested in the registered proprietor and brought out the insurance office unhurt. The person who even where he is a mortgagor who has executed a legal mortgage really required protection was the purchaser who had omitted and is registered with a possessory title only, the mortgages being to insure. As Mr. Porter points out in the chapter on fire policies relegated to the position of a proprietor of a registered charge-viz., and assignments, the law on this point is not satisfactory. Notwith the possessor of a power only and not of an estate. This view seems standing the reasons adduced by James, L.J., in Rayner v. Preston, to be confirmed by the fact that rule 97 specially provides for the the courts have declined to hold that the policy runs with the land. case of a registered proprietor refusing to execute a transfer to the The French law, Mr. Porter says, is otherwise. There the policy is purchaser from the mortgagee-a provision which would be unnecesdeemed to be accessory and to pass with the property. This rule sary if the latter had the legal estate. Further confirmation is is the only one that affords proper ction to purchasers, for it is afforded by the fact that a purchaser can be registered as proprietor usually impracticable for the purchaser to insure on his own behalf without taking a conveyance or transfer, and that no express power immediately the contract of purchase is made. The second chapter to lease is given to a registered proprietor. These facts are only deals with the important question of insurable interest. The defects on the supposition that registration does not vest the legal Life Assurance Act, 1774 (which Mr. Porter, notwithstanding its estate. new title, still refers to as the Gambling Act) requires the existence I shall be glad to have this view confirmed by some other reader. of an insurable interest as the basis of a contract of insurance, but it Manchester, July 13.
JNO. T. LINGARD. was left for the courts to decide what an insurable interest might be. [See observations in “ Current Topics.”—ED. S.J.] From this point the various matters incident to policies of insurance are taken up in detail and are succinctly dealt with. The chapter on lien refers to severalcases of interest which have been decided of recent years as to the rights of persons who make payments for the purpose of main
THE INCORPORATED LAW SOCIETY, taining policies. The rules on the subject were formulated by Fry,
[To the Editor of the Solicitors' Journal.] J., in Leslie v. French (31 W. R. 561, 23 Ch. D. 552), and his statement of the law appropriately forms an introduction to the chapter of the 9th instant, and particularly to the third paragraph thereof, I
Sir,-Adverting to the letter of Mr. O. H. Morton in your issue The history of some of the earlier life insurance offices raised impor; still submit that the practical effect of the Councils openly nominating tant questions on the doctrine of novation, and the chapter assigned to this subject is copiously illustrated from the decisions in the candidates is to render the Council co-optative. European and Albert arbitrations. The book is a useful and trust- apparent the effect must be as I say, because it must necessarily
Whilst making full allowance for what Mr. Morton says, it is wortby manual of insurance law.
follow under such a system that the chances of success of members of the society who are desirous of having a seat on the Council, but who
ara unable to secure the support of the Council, are very seriously BOOKS RECEIVED.
prejudiced by that fact alone, besides having the whole strength of The Employers' Liability Act, 1880, and the Workmen's Com- the Council opposed to them. pensation Act, 1897 ; together with the Statutes affecting these Acts.
The fewness of the independent candidates who present themselves Also the Rules of Procedure thereunder, and Forms. °By ALFRED for election seems to confirm my view that it requires more than HENRY RUEGG, Q.C. Tbird Edition. Butterworth & Co.
ordinary courage on the part of would-be candidates to present them -
The Albany Law Journal gives the following incident which occurred [To the Editor of the Solicitors' Journal.]
during the examination of a witness : “Were you in the house?" asked
Assistant United States Attorney Harry Bune in court at Topeka of an old Sir, — With reference to your comments in the last issue of the fellow who was on the witness stand in a criminal case from the Fort SOLICITORS' JOURNAL on the report of the Special Committee of the Riley military reservation. “I were," responded the witness. “Were Incorporated Law Society on Legal Procedure, perhaps I may be you in the room where these prisoners were dividing the stolen goods ?” allowed to mention a case of great hardship on an English litigant
'No, I were in the other room." What were you doing in the other which recently came under my notice.
room?" "Well, I was tol'ably busy.” “Mr. Martin, that is not an A client of mine, an English woman resident in England, while
answer to my question. I want you to tell the court exactly at what you travelling on a local English railway, suffered serious injury through fits, and I were in thar havin' one.
were busy." * Well you see, mister, I am subject to them 'ar epilemtic the negligence of the company, and I was instructed to bring an sharply to bring the court-room to order and remarked on the side : ** I
And then Judge Foster rapped action for damages. The company was originally a purely English should think having fits was about the busiest work any man could engage one, and the railway is wholly situate in England. It was afterwards in."
case of Baines v. Bromley (29 W. R. 245, 6 Q. B. D. 197), we are unable CASES OF THE WEEK.
to see any conflict in principle between them if attention is paid to the
points really decided by them. There is no decision that a plaintiff who Court of Appeal.
has to pay or to receive the general costs of an action can throw on his
opponent, or have thrown on himself, any part of such costs. On the R. CALCOTT AND ELVIN'S CONTRACT. No. 2. 11th July. other hand there are decisions that no such apportionment can be made. BANKRUPTCY-ORDER OF ADJUDICATION-MIDDLESEX REGISTRY-DEED OR In Baines V. Bromley and in Shrapnel v. Laing (ubi supra) the late Master of
ConveyANCE-PRIORITIES-MIDDLESEX Registry Act (7 ANNE C. 20)— the Rolls expressed his opinion that costs common to both claim and BANKRUPTCY Act, 1883 (46 & 47 Vict. c. 52) ss. 20, 54 (4), AND 121.
counter-claim should be apportioned, and he suggested that even the This appeal raised the question whether an order whereby a man has the defendant got the benefit of his counter-claim by means of the writ
costs of the writ might be so dealt with (see 20 Q. B. D. 339), because been adjudicated a bankrupt under section 20 and 121 of the Bankruptcy issued by the plaintiff. But Lord Esher was careful to add that it was Act, 1883, falls within the words “deed or conveyance” in the first section unnecessary to decide such questions, as they did not arise. We will of the Middlesex Registration Act so as to require registration in the make another preliminary observation before examining the decisions Middlesex Registry in order to perfect the official receiver's title to land of
more closely. We have not to consider how an order should be drawn the bankrupt in Middlesex. Under an indenture of the 7th of February, 1881, certain leasehold properties in Maida Vale, London, were demised up so as to give the general costs of an action in which there is a claim to Michael Death for forty-one years. By two indentures of mortgage from him. It is unnecessary to consider such cases as Lowe v. Holme (31
and a counter-claim to that party who recovers more than is recovered dated respectively the 4th of September, 1894, and the 25th of December, W. R. 400, 10 Q. B. D. 286) and Lund v. Campbell (33 W. R. 510, 14 1894, the said Michael Death mortgaged the said premises to Calcott to secure
Q. B. D. 821). In such cases the judge who tries the action without a moneys advanced by Calcott. These mortgages were respectively duly jury has greater power over the costs than a judge who tries an action registered in the Middlesex Land Registry on the 10th of October, 1894, with a jury. In the present case judgment has been pronounced an! and the 29th of December, 1894. Michael Death made default and Caldrawn up, and all we have to do is to construe and give effect to it. cott entered into possession of the mortgaged property, and, in exercise of Whether an action is brought in one division of the High the power of sale conferred upon him by the said mortgages, on the 16th Court or another, whether it has been tried with a jury or without a jury, of November, 1897, contracted to sell the premises to Elvin. to completion of such sale Elvin, the purchaser, ascertained that Michael must in principle be the game, although the costs to be taxed may be
Just prior the construction and legal consequences of the judgment when drawn up Death was and had been since 1887 an undischarged bankrupt, having different in the one case from those in the other. Now let was take the been adjudicated bankrupt by an order dated the 28th of January, 1887, judgment in this particular case. made under section 20 of the Bankruptcy Act, 1883, and that on the 29th costs, but it is unnecessary to refer to them. By the judgment as drawn
There were sore separate orders as to of January, 1887, an order had been made under section 121 of the same Act for the summary administration of his estate. By virtue of those up, the plaintiff has to pay the defendants the costs of the action; not orders the official receiver became Michael Death's trustee in bankruptcy. some of them or some portion of them, but all of them. There are no The official receiver had registered no memorial of his title to the said separate issues in the action the costs of which have to be borne by the his contract. The vendor insisted that the official receiver not having the action ought to be taxed as if there were no counter-claim. Whether premises. In view of the above facts the purchaser refused to complete defendants: In considering what are costs of the action, the counter-claim, registered his title, had no title as against the vendor's registered mort- both parties fail (as in Saner v. Bilton, Mason v. Brentini, and Russell y, gages, and this summons was issued by the vendor asking for a declaration Russeli, ubi supra), or whether both succeed (as in Baines v. Bromley, Ward that notwithstanding Michael Death's bankruptcy in 1887 the vendor as mortgagee had a good title to the property. The summons was argued
v. Morse, Shrapnel v. Laing, and Hewitt v. Blumer, ubi supra), or whether before Kekewich, J., on the 31st of March, 1898, when his lordship This was pointed out and decided in Ward v. Morse (ubi supra); and
one fails and the other succeeds, can in principle make no difference. delivered his judgment and held that the title of the vendor was good by Baines v. Bromley and Shrapnel v. Laing (ubi supra) in no way conflict with virtue of his registration, and was prior to the official receiver's, as he had
that decision. not registered his title. The case is reported in 46 W. R. 457. The
In Baines v. Bromley the defendant recovered on his purchaser appealed from that decision.
counter-claim more than the plaintiff recovered on his claim, but the order The Court (LINDLEY, M.R., and Chitty and Collins, L.JJ.) allowed gave the plaintiff the costs of the action and he was held entitled to them the appeal, and held that the order of adjudication in bankruptcy was not although Lord Esher, in his judgment, stated what, in his opinion, ought
No question of apportionment was raised or decided, a deed or conveyance within the statute 7 Anne c. 20, and therefore did to be done as regards costs common to both claim and counter-claim. not require registration; that the official receiver's title was prior to that of Calcott, and that Calcott had therefore no title to the property in Shrapnel y Laing and Hewett v. Blumer (ubi supra) were precisely similar Mackenzie ; Ingle Joyce. SOLICITORS, Percy C. Ray; G. L.'B. Caicott; Solici- (ubi supra) the plaintiff recovered on his claim more than the defendant tor to the Board of Trade.
recovered on his counter-claim. The plaintiff got the costs of the action,
but he had to pay the costs of the counter-claim. He sought to escape (Reported by W. Scott Thompson, Barrister-at-Law.]
from the foregoing rule and wanted the whole costs of the litigation ; but ATLAS METAL CO. v. MILLER AND OTHERS. No. 2. 30th June, and the Court of Appeal, following Shrapnel v. Laing (ubi supra), decided 1st and 7th July.
against him. All the authorities agree so far-i.e., they all decide that a
plaintiff who is to pay or be paid the costs of his action is to pay or be PRACTICE-CosT8-TAXATION-COUNTER-CLAIM - PLAINTIFF ORDERED paid the whole of such costs as if there were no counter-claim. Next,
PAY GENERAL Costs OF ACTION, DEFENDANT TO Pay Costs of COUNTER as to the counter-claim. The defendant has to pay the costs of this, CLAIM-Costs of COUNTER-CLAIM, WHAT ARE—Costs OCCASIONED BY THE and the counter-claim is to be treated as an independent cause of COUNTER-CLAIM-GENERAL Costs OF ACTION, WHETHER TO BE APPOR- action, and, to use Lord Esher's words, as if the claim did not exist
(20 Q. B. D. 338). This last explanation, however, is calculated to This was an appeal by the defendants from a decision of Channell, J., mislead if not explained and properly understood. What are costs of a
No at chambers, affirming the decision of the taxing-master, who had appor counter-claim ? The answer must be, the costs occasioned by it. tioned certain costs of the action between the plaintiff and the costs not incurred by reason of the counter-claim can be costs of the defendants. The case was argued on the 30th of June and the 1st of counter-claim. The fact that if there had been no action the costs of the July, 1898, and judgment was delivered on the 7th of July.
counter-claim would have been larger, because the defendant would then The Court (LINDLEY, M.R., and Chitty, L.J.) allowed the appeal, have bad to issue a writ and take other proceedings, does not make costs and remitted the matter to the taxing.master that he might review his not incurred costs incurred; and in considering what the costs of a taxation.
counter-claim really have been in any particular case the costs saved by The judgment of the court was read as follows by
not bringing a cross-action cannot be treated as costs incurred. The LINDLEY, M.R.-In the action the plaintiff sought to recover damages introduction of counter-claims has given litigants advantages in this from the defendants for a libel by the defendants on the plaintiff. The respect. Counter-claims, although cross-actions for all purposes of prodefendants defended the action, and by a counter-claim sougbt to
cedure and evidence, cost less than actions, and the party who has to pay recover damages for a libel on themselves by the plaintiff. The action
the costs of a counter-claim gets the benefit of the cheaper procedure. was tried with a jury, who found a verdict for the defendants on the To include in the costs of a counter-claim any costs not occasioned by its claim and for the plaintiff on the counter-claim, and judgment was
being a counter-claim, but saved by its being what it is, appears to us entered accordingly for the defendants on the claim with costs, and for wrong in principle and opposed to Saner v. Bilton and Ward v. Morse the plaintiff on the counter-claim with costs. The costs have been (ubi supra). If Lord Esher really meant to express a contrary opinion we taxed, and the taxing-master, following what he understood to be the cannot agree with him. We are satisfied that there is no decision to that rule laid down in Shrapnel v. Laing (36 W. R. 297, 20 Q. B. D. 334), has effect. But, as pointed out by Lord Esher, there may be costs brought apportioned some of the costs of the action between the plaintiff and in for taxation which have been incurred partly in support of, or in defendants. The defendants complain of this, and contend that none of opposition to, a defence, and partly in support of, or in opposition to, a the costs of the action ought to be thrown on them. Channell, J., at counter-claim—e.g., where there is a defence of set-off equal to the chambers, upheld the master's decision, and the defendants have appealed plaintiff's demand, and a counter-claim for more than the plaintiff's to this court. The defendants rely on Saner v. Bilton, No. 2 (27 W. R.
demand. In such cases the taxing-master must apportion the costs as 472, 11 Ch. D. 416), which was approved and followed by the Court of Appeal best he can, and fix the amount applicable to the defence and the amount in Mason v. Brentini (29 W. R. 126, 15 Ch. D. 287) and Re Brown, Ward v. applicable to the counter-claim. Where there are no separate issues Morse (31 W. R. 936, 23 Ch. D. 377), and still more recently in the un- requiring special treatment the costs of the defence will be costs of the reported case of Russell v. Russell (i9th of January, 1898), which was an action; the costs attributed to the counter-claim will be costs of the appeal from the Divorce Court. Having carefully studied these cases
counter-claim. Costs common to both defence and counter-claim must and compared them with Shrapnel v. Laing (ubi supra), Heu itt v. Blumer necessarily be dealt with in this way. But to do this is very different (3 Times L. R. 221), Finska v. Brown (W. N., 1891, p. 116), and the earlier from apportioning what are propeiiy coets of the action, and euch
costs when ascertained must be paid by the party ordered to pay them. with regard to them.” (1) “Any exceptional circumstances specially They cannot have been increased by the counter-claim, and no part of affecting the administration of the trust.” (2) “An affidavit by the them can be properly regarded as costs of the counter-claim. "In the applicant verifying the statement shall be sufficient primâ facie evidence present case the master has lost sight of those principles, and has apporo of the particulars contained in the statement." tioned some costs which are properly costs of the action, and has thrown KBKBWICH, J., said that the power of appointing a ju licial trastee some part of them on the defendants. In other instances he has tried to given to the court by the Judicial Trustees Act, was by the express bring about a fair apportionment by equalizing the amounts allowed to terms of section 1, sub-section (1), of the Act entirely a discretionary each party, so as to set one off against the other. The result is that the power, and that under the circumstances, in the absence of misconduct on defendants receive less than they ought in respect of the costs of the the part of the executrix, and the executrix being unwilling that a action, and pay more than they ought in respect of the costs of the judicial trustee should be appointed, he did not think that a judicial counter-claim. The case must therefore go back to the master in order trustee should be forced on her against her wish. Ag, however, in the that he may review his taxation in accordance with the principles above present case the main portion of the trust had to be executed after the explained, which are in accordance with all the previous decisions when death of the tenant' for life, the sole executrix, and improper securities carefully examined. The costs of this application, both here and below, had to be realized and re-invested, his lordship directed that the snm. will be reserved until we know the result of the taxation.-COUNSEL, mons should be amended by making the application “in the matter of Bousfield, Q.O., R. M. Bray, Q.C., and Crane ; Eldridge. SOLICITORS, the Trustee Act, 1893," and that a trustee should be appointed under Indermaur & Brown ; Sugden f Harford.
that Act to act with the widow, and ordered that the matter should be [Reported by R. C. MACKENZIE, Barrister at-Law.)
accordingly remitted to chambers with an instruction that if Mrs. Ratcliff nominated a proper person to be trustee, such nominee should be accepted. His lordship also directed that the costs of all parties as
between solicitor and client should be paid out of the estate. -COUNSEL, High Court-Chancery Division.
S. 0. Buckmaster; Warrington, Q.C., and J. G. Wood. SOLICITORS, Merriman,
White, & Thompson ; Ford, Lloyd, Bartlett, f Michelmore, for Toone & Re RATCLIFF. Kekewich, J. 6th July.
Bartlett, Loughborough. TRUSTEE-JUDICIAL TRUSTEE-SOLE EXECUTOR -TRUST — REVERSIONER
[Reported by C. C. HENSLEY, Barrister-at-Law.] APPLICATION BY BENEFICIARY FOR APPOINTMENT OF JUDICIAL TRUSTEE -APPOINTMENT BY COURT--JUDICIAL TRUSTEES ACT, 1896 (59 & 60 Vict.
STRANGWAYS ». READ. Romer, J. 8th July. C. 35), ss. 1 AND 4; Rules 1897, 2 AND 4.
LUNACY-COMMITTEE OF PERSON-LIABILITY TO ACCOUNT ALLOWANCE Robert Ratcliff by his will dated the 11th of June, 1891, gave and Paid QUARTERLY IN ADVANCE-DEATH OF LUNATIC BEFORE EXPIRATION bequeathed all his property, real and personal, to his wife Hannah Jane OP QUARTER. Ratcliff, and appointed her sole executrix of bis will; and after directing The question raised in this action was whether a quarter's payment in payment of various legacies after her death, he appointed Joseph Nixon advance to the committees of a lunatic's person in respect of a fixed annual * residuary legatee after all the legacies are paid after my wife's death." allowance ordered for her maintenance was apportionable on the death of He did not appoint any trustees of his will, which contained neither any the lunatie before the expiration of the quarter for which the advance was power for the appointment of trustees por any investment clause. The made, so that her legal representatives became entitled to bave a proportiontestator died, and his will was proved by his widow on the 12th of ate part of the amount so paid handed over to them by the committees of the November, 1897. On the 9th of May, 1898, Joseph Nixon, “the person. By an order in lunacy dated the 24th of March, 1896, Isabella residuary legatee,” took out the present originating summons, as a R. Read and the defendant, Constance R. Read, were appointed combeneficiary, under section 1. sub-section (1), of the Judicial Trustees Act, mittees of the person and the official solicitor was appointed committee of 1896, against Mrs. Ratcliff, the widow and cole executrix of Robert the estate of Mrs. P., widow, a certified lunatic, and there was allowed Ratcliff, asking that a certain gentleman-a solicitor, or some other fit for her maintenance £2,500 per annum from the 29th of January, 1896. and proper person or company, might be appointed a judicial trustee of The said order provided (inter alia) that the said defendant as one of the testator's will either jointly with Mrs. Ratcliff or, in the alternative, as committees of the person should be at liberty to reside with the lunatic sole trustee. The summons was supported by a written statement (1897 and to retain for her use her leasehold residence and stables in London Rules, r. 4) verified by an affidavit (rule 4 (2)) filed by the applicant together with her furniture, horses, carriages, and other effects there, under the • Rules under the Judicial Trustees Act, 1896," made in 1897 and the said defendant resided there accordingly until the death of the in accordance with section 4 of that Act. It appeared from this state- lunatic. After the date of the said order the committee of the estate paid ment that the testator's property amounted in value to between £28,000 to the committees of the person, out of the estate of the lunatic, the allowand £29,000, of which £2,500, approximately, was represented by real ance of £2,500 per annum for her maintenance by equal quarterly pay. estate, the balance of about £26,000 being personal estate. The greater ments, each payment being made in advance, and it was not disputed part of the personal estate was at the present time invested in, or repre- that the lunatic was always properly maintained until she died. On the sented by, securities of such a description as is not authorized as a proper 26th of October, 1896, the sum of £625 in respect of the said maintenance investment for trust funde. The legacies given by the will, which allowance for the quarter ending the 29th of January, 1897, was paid to included one of $1,000 to the applicant, amounted in all to about $9,000, the committees of the person. On the 11th of November, 1896, the and the applicant claimed to be entitled absolutely, subject to the life lunatic died. The plaintiffs, who were the executors of her will, claimed interest of Mrs. Ratcliff, to the whole of the balance of the property of a declaration that the defendant, Constance R. Read, and the estate of the testator, though, owing to the informal nature of the will, some the said Isabella R. Read, who died in May, 1897, were jointly and question mi be raised with regard to the real estate. Mrs. Ratcliff severally liable to repay to the estate of the lunatic the proportionate was about seventy-two years of age, and it was alleged as a ground for part for the period subsequent to her death of the quarter's allowance of the present application that, owing to her advanced age, she was unable £625 paid to them for her maintenance, or in the alternative to repay the to attend properly to the management of so large an estate, of which £625, less any sums properly paid for the lunatic's maintenance between she was tenant for life, and as sole executrix had entire control. It was the 29th of October, 1896, and her death, with an inquiry in the latter alleged, moreover, that her interest as tenant for life conflicted with that alternative as to such sums, and payment in either alternative of any of the applicant as remainderman, inasmuch as she would, as was the amount found due to the plaintiffs. For the defendants it was contended fact, naturally desire the property to remain in its present state of that, the lunatic having been properly maintained, they could not be investment at a high rate of interest, whereas the remainderman desired ordered to repay any part of the said sum of £625, the committees of the it to be invested in securities in which the corpus would be securely person being entitled under the scheme of the above-mentioned order to preserved, and, though the slightest reflection on the honesty of the retain any savings thereout for their own benefit: see Re Ponsonby (3 tenant for life was expressly disclaimed, it was submitted that the present Dru. & War. 27, 31, 2 Connor & L. 30, 32), Grosvenor v. Drax (2 state of affairs was undesirable. The applicant also alleged as Knapp 82). “exceptional circumstances specially affecting the administration of the ROMER, J., said that the point was a novel one and of some difficulty, trust" (1897 Rules, r. 4 (i)) that without the authority of the court no but he thought the plaintiffs were entitled to something. The sum fixed trustees of the testator's property could be appointed ; that the testator's by the order in lunacy was clearly fixed with reference to the whole year, will was informal throughout, and it was almost certain that questions and not to a quarter or any other portion of a year. It was arranged would arise as to its proper construction, on which the opinion and between the committee of the estate and the committees of the person decision of the court would have to be obtained. The applicant was that payments on account should be made in advance, and that was a willing that the judicial trustee, if appointed, should be remunerated out reasonable arrangement on the footing that the lunatic should be mainof the corpus of the property. The application was opposed by the tained for the whole year. But the lunatic was only maintained for nine widow. Section 1 of the Judicial Trustees Act, 1896, provides (sub. months, and yet the committees of the person were claiming a whole section (11)) that, "where application is made to the court by or on year's allowance. The payments by the committee of the estate were not behalf cf. a trustee or beneficiary, the court may, in its discre- made on that footing. The lunatic's executors were therefore entitled to tion, appoint a person in this Act called a judicial trustee) to be a trustee, recover such part as could not be said to have been properly expended by either jointly with any other person, or a sole trustee
them in her maintenance, regard beiug had to the provisions of the order Section (4) provides (1) that “ rules may be made for carrying into effect in lunacy. His lordship thought that Grosvenor v. Drax was sufficiently this Act”; and (2) as to how such rules may be made. The “Rules dealt with by Cairns, L.J., in Re French (16 W. R. 657, L. R. 3 Ch. 317), under the Judicial Trustees Act, 1896," made in 1897 provide : Rule 2. and the observations of Lord St. Leonards in Re Ponsonby must be con "An application to the court to appoint a judicial trustee shall be in the sidered to be made with regard to the ordinary case where the lunatic Chancery Division, and (a) if not made in a pending cause or matter, was properly maintained for the whole year. One of the committees of shall be made by originating summons." Rule 4 (1) “Where an appli- the person had died, but the money was paid to both, and they were both cation is made for the appointment of a judicial trustee by originating accountable in equity.-Counsel, Neville, Q.C, and R. J. Parker ; Far. summons, the applicant must, when he takes out the summons, supply well, Q.C., and s. Dickinson ; E. F. Buckley. Solicitors, Hickin, Smith, $ for the use of the court a written statement containing the following Capel Cure; Longbourne, Stevens, & Co. particulars” (as thereinafter set out) " so far as he can gain information
[Reported by J. F. WALEY, Barrister-at-Law.]