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OPTIONS TO PURCHASE IN LEASES AND THE RULE AGAINST PERPETUITIES.
In the last number it was submitted that covenants in a lease giving the option of purchasing the reversion are not exempt 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 more than twenty-one years (independent of life) and giving t_o the lessee an option to purchase the reversion, it has been submitted that if the covenant give the option of purchasing from the lessor, without mention of his heirs or assigns, it is personal to him and enforceable in his lifetime only : Stacker v. Dean (16 Beav. 161). Such a covenant, therefore, does not offend against the perpetuity~rule. So also if the option be given to the lessee only, without mentioning his executors, administrators, or assigns. But if the covenant give to the lesee, his executors, administrators, or assigns the option of purchase from the lessor, his heirs or assigns, is it enforceable, either specifically or in damages, against the original covenantor? ' The case would seem to fall within the well-settled principle that, where some of the stipulations in a contract are illegal and others legal, then, if the stipulations are severable, the le al part of the contract may be enforced: Jlallan v. May (11 & VV. 653); Price v. Green (16 M. & \V. 316); Nfclzolls v. Stretton (10 Q. B. 346). If the lessor covenant that he, his heirs or assigns, will sell, why should not the stipulation that he himself shall sell be separated from that which purports to bind his heirs and assigns? If so, the covenant, as regards this stipulation, must be performed (if at all) in the covenantor’s lifetime: see Stacker v. Dean; and should therefore be enforceable against him specifically, or a breach by the covenantor himself should give rise to an action for damages. This contention appears to be further supported by the doctrine under which a gift over, following a limitation void for remoteness but expressed to take effect in one of several alternative events, of which some conform to and others ofiend against the perpetuity-rule, is held to be severable and to be valid, if the event conforming with the rule be that which happens 2 see Longlzead v. Phelps (2 W. Bl. 704), E-oars v. Challis (7 H. L. C‘. 531), Jliles v. liar;/‘oral (12 Ch. D. 691, 703, 704), and 1 Jarm. Wills, 5th ed., 255-259.
But supposing there be no breach of such a covenant in the original covenantor’s lifetime, is a breach by the covenantor’s heirs or assigns a good cause of action on the covenant? If so, the covenantor’s heir or devisee refusing to erform the covenant might find himself liable to an action on the covenant. It has been previously submitted that the covenant would not be specifically enforceable against such heir or assign. And it is further submitted that such a covenant, in so far as it tends to create a perpetuity, is against the policy of the law and is therefore altogether void. In Hope v. Corporation of Gloucester (7 De G. M. & G. 647) it was held that a covenant to renew a lease, after the expiration of a term of thirty-one years, in favour of a person who would not necessarily have any interest as lessee under the old lease, was not only not specifically enforceable, but invalid, as creating a perpetuity. And that great master of tho common law, Panxn, B., in delivering his opinion in Egerton v. Brownlow (4 H. L. G. 1, 125, 18 Jur. 71, 85) gave the following instances of contracts void for illegality, as being against the policy of the law: “There are other cases in which contracts or provisoes have been held to be illegal on principles lon recognized by the common law, such as marriage brocage bongo, conditions or contracts not to marry, in restraint of trade, against alienation of land, including those violating the law of perpetuities.” These authorities appear to be directly in point. The case is, moreover, analogous to that of an unlimited covenant never to assign land, which appears, according to the better opinion, to be void as against the policy of the law: see 1 Smith L. G. 185, 2nd ed., 419, 10th ed., P0oZe'e ease (cited Moore 810), Jervis v. Bra/on (2 Vern 251, Co. Litt. 379 (b), Butl. note), Jllelean v. .7l[eKay (L. R. 5 P. C. 327, 334). And it is submitted that, generally, the principle laid down by Panxa, B., is correct; and where a proviso
shifting property would be void as against the policy of law, whether for remoteness or otherwise, a contract tending to produce a like effect is equally void, and vice oersd. An instance of this is afiorded in the case ‘of contracts and conditions in general restraint of marriage: see Low v. Peers (Wilmot 384), Law Quarterly Review xii. 36, where the authorities are collected. T. Cvrnmu Wrnnmts.
THE LAND TRANSFER RULES» X.
Part III. (eont¢'nuerl).—Adaptatiz'on to ineumbiames prior to regutration, and to sub-mortgages, of the prov-z7sz'ons of the Ael of 1875 with regard fo char_qes.—-Rules 118 to 123, which are made pursuant to section 22 (6) (o) of the Act of 1897, appear to be well devised for carrying out the objects in view. Thus where registration is made subject to incumbrances, those incumbrances when entered on"the register ‘will thereafter be dealt with as if they had been originally created by means of a. registered charge. Where, however, the incumbrance is of such a nature that it cannot readily be given effect to by means of a registered charge, it is conceived that notice of the incumbrance in the case of an absolute title wiIl"b/e entered instead of re ' teringjt, and the incumbrance will continue to be dealt'"v%lli"'6fi the register. The consent of the incum_brancer is requisite to its registration, and noticeiis 'to be given to the registered proprietor of the land of the application to register. Inasmuch as the registration of a proprietor with a possessory title does not afiect incumbranoes existing at the date of registration, notwithstanding no notice of them is entered on the register, it is apprehended that, as a general rule, such incumbrance_s__p'il1\ not__be registered: The power for the registered proprietor ofa charge to create a sub-charge (rules 121-3) which will entitle the sub-charges to have a certificate, is new, and undoubtedly supplies a want.
.’[5'ans;nz'ssions of land and charges on deotk.—-The personal representative of a sole or sole surviving registered proprietor of land or a charge dying after 1897 is to be registered on production of probate or letters of administration. Heis to be described as “executor (or administrator) of ,deceased," and if an executrix or administratrix is a married woman that fact is to be stated. The last provision is probably due totho inability of a married woman trustee to pass the legal estate 111 freeholds except with the concurrence of her husband and by a deed acknowledged ; Re I[a-rlmess and Allaopp (1896, 2 Oh. 358). This decision would not, we conceive, apply to registered land in any other case than that of an exeoutrix so far as regard! dispositions on the register, as a transferee for value would have no notice of a trust (Act of 1875, s. 83 (1), as amended).
Personal representatives can transfer without being themselvfll registered (Act of 1897, s. 9 (6) ), but the transfers cannot lJ° registered until the personal representatives shew a title t° b° registered to the satisfaction of the registrar (rule 144). _
A form of assent to a devise by a personal representative 18 prescribed (First Schedule, Form 42). There may be a doubt whether a married woman executrix can assent without tbsp concurrence of her husband. Two of the rules bear the number ’ 127, the second of them deals with registration when a settlement is created by the will of, or otherwise arises in consequence 01', H18 4168-fill Of 8- sole registered proprietor. The personlil representative is at the proper time, with the consent of the tenant for life (if of full age), to deliver at the registrj 5 written application for the registration of a proprietor wltll proper restrictions and inhibitions. “The proper time ” Would seem to be one year from the death (Act of 1897, s. 3 (2) ) of as soon thereafter as the estate is wound up. We conceive that no conveyance to uses need be executed by the personal reprosentatives, as their assent to the registration of the tenant for life operates as an assent to the gifts in remainder : Stevenson v. Mayor of Liverpool (L. R. 10 Q. B. 81). A tenancy by $119 curtesy would seem to be an instance of a settlement arising Ill consequence of the death of a registered proprietor.
On the death of a tenant for life who is a registered proprifllfm the Settled Land Act trustees are to apply for the registration of the next remainderman (Act of 1897, s. 6 (4)). They find
of the settlement, and as to the proper restrictions and inhibitions to be placed on the register, or that none are necessary (rule 128). The registrar may require a certificate of counsel to support the declaration (rule 129). \Vhere a declaration and certificate (if required) are produced, the registrar is not to require production of the settlement or any further evidence (rule 130). On the death of one of several joint proprietors, his name isto be withdrawn from the register on production of a certificate of death or probate or letters of administration with evidence of identity by statutory declaration, or such other evid)ence as the registrar may deem sufficient in each case (rule 132 .
Bankruptcy. —The rules contain provisions for the registration of the oflicial receiver or of the trustee in bankruptcy (rules 133 to 135). A transferee for value from the bankrupt before registration of the official receiver or the trustee will obtain a good title (Act of 1875, s. 30). In the case of a company in ~htion or order appointing a liquidator may be filed and referred to in the register (rule 136).
Covanam‘s for titIe.—The covenants for title under the Conveyancing and Law of Property Act, 1881, may be introduced into instruments of transfer or charge (rule 139). Instruments of transfer and charge are, however, retained at the registry (rule 153), so that where an acknowledgment and undertaking as to title-deeds is given, it should be taken separately. It may be doubted whether the implied covenants for title will be held to extend to matters which are declared not to be incumbrances by section 18 of the Act of 1875. 'I‘&avoid_the doubtrthe form
I t ansfer should_ C011,lZ§.1I1,__&l1 egpress declaration that the coyenfinfs for title are to app] . ~mr2?s“in' (iii h-gi'ater.—The Acts give no power for the registered proprietor, as such, to ant a lease by_ re istered dis gsjtion or otherwise; notice Hflease wheré"the term is for life or lives oreirceeds 21 years, or where the occupation is not in accordance with the lease, may be entered on the register and operates as an incumbrance (Act of 1875, s. 50). In cases where an intending lessee investigates the title of his 195801‘ (111, W_h9l‘.6 8.. fi_11§Ls_taken), he will require, in the case of an abso_ ute title, the title off the register to be shewn since the last registered transfer for value, and in the case of a possessory title, in addition to that required in the case of an absolute title, an abstract of title to rights and interests paramount to the fee simple conferred by first registration. We conceive that an instrument creating irterm to secure portions is a. lease where the occupation is not in accordance therewith, so that notice of the term may be entered up. I_’rovision is made as to notice of a lease (rules 157-8). The notice in the register is to refer to a filed copy of the lease and is to give the term, and may include such other short par
ticulars as ma be convenieptl_y_Ventg1_-ed, "W-i
Where the lease confers a riglht of pre-emption, this is to be noted in the register; as to whet ersucfirightbfpre-emption or option to purchase must be limited in compliance with the rule against perpetuities, see ante, p. 628. Agreements for leases are on the same footing as leases (Act of 1875, s. 50 ; rules 157160). The original lease or agreement is to be marked with a note of t~ yaniso be returned to the lessee.
Mn. EDWARD LEE ROWCLIFFE, to whoso sudden death we briefly referred last wee-k, was the second son of the late Mr. CHARLES ROWCLIFFE. J.P., of Stoguuiber. and aft~rwards of Milvcrton, Somerset, himself a solicitor. He was admitted in 1847, and after working for some years as a managing clerk at No. 1, Redford-row with the firm of Gregorys, Faulkner, & Skirrow, in 1854 became a partner in the firm, the title of which then became Gregor-ye, Skirrow, & Rowcliffe, his younger and sole surviving brother, Mr. WILLIAM ROWCLIFFE, now the head of the firm of Rowcliffes, Rawle, & Co., becoming a partner in 1860 upon the death of Mr. Jonx SWARBECK GREGORY, the thcn senior partner and the father of tho late Mr. GEORGE BURROW GREGORY, so long M.P. for East Sussex. On the retirement of Mr. Cnsnnss SKIRROW in 1861, in order to take up his appointment of Solicitor to the Admiralty, the whole business
their solicitor are to make a statutory declaration as to the state the firm in 1867. For many years Mr. liowcrirrir. carried on the
devolved on the late Mr. G. B. Gnaoonr, the late Mr. R.')WCLlFFE, and his brother Mr. WILLIAM Rowomrrs, until Mr. RAWLE joined
large Common Law business of the firm, and amongst several wellknown cases in which he was concerned were the Wyndham Lunacy case. which lasted over thirty days; the litigation which arose out of the American Civil War, including the flight of The Alabama; the Alexandra case, which went to the House of Lords; the question of the seizure of the Rams under the Foreign Enlistment Act, during the American Civil War; and the case of the Attorney-General v, Ryvcs, which involved a serious claim under the Legitimacy Declaration Act affecting the Crown.
In 1864 Mr. Rowcmrrs purchased the Hall-place Estate, near Cranleigh, in Surrey. This estate he gradually extended and improved till at the date of his death it consisted of upwards of 1,000 acres, and the whole of this he farmed himself, faking a very keen interest in everything connected with agriculture. Besides being a member of the Royal Agricultural Society and the Bath and West of England Agricultural Society, he was a member of the local agricultural societies, at whose meetings and dinners he wasa regular attendant and a speaker whose remarks were always listened to with great interest. He was also a subscriber to all the local charities and institutions, and had, in fact, arranged to preside at the annual dinner of the West Surrey Benefit Society on the 26th inst. At his own cost he erected two fountains, one in the village of Hascombe and one near the estate on the Guildford and Horsham road, which proved a great benefit to the neighbourhood.
In politics Mr. Rowcmrrn was a Liberal, but after the Home Rule split became a Unionist. He was appointed a magistrate for Surrey in 1880, a deputy-lieutenant in 1895, and he served the office of high sheriff for that county for the year 1895-6. He was a member of the Surrey and Middlesex Society, the Union and Devonshire clubs, the Surrey Magistrates and Guildford County Club, and was a parish councillor of his parish of Hascombe. He was a director of the Law Fire Insurance Society, the Legal and General Life Assurance Society, and the Law Reversionary Interest Society. He was also a member of the Incorporated Law Society and the Solicitors’ Benevolent Association.
Mr. ROWCLIFFE was a staunch Churchman, and when at Hallplace was a regular attendant at Hascombe Church and a keen supporter of the rector.
Mr. ROWCLIFFE married in 1853 Caroline, daughter of the late Mr. CHARLES BAILEY, of Lee Abbey, Lynton, North Devon, and her death, eighteen months ago, proved a severe shock to him. He left no family. Both at Hall-place and at his London house in Regent/s Park Mr. and Mrs. ROWCLII-‘FE entertained a large circle of friends, by whom, as by his relatives, his loss will be greatly felt.
Mr. ROWCLTFFE was buried on Thursday, the 7th inst., in the beautiful churchyard of Hasoombe, Surrey, by the side of his wife, the officiating clergy being the Archdeacon of Surrey, Canon MusGRAVE (the rector of the parish), and the Rev. Dr. MERRIMAN, rector of Freshwater, Isle of Wight. The funeral was attended by a vast concourse’ of people of all classes, including numerous friends from London; amongst those present, in addition to the mourners (who were the deceased’s only surviving brother Mr. WILLIAM ROWcmrra, his nephews Messrs. WILLIAM CHARLES, Enwsan LEE, and Ilannr SKIRROW Rowcmrrn, Mr. RAWLE, General Sir Eowsnn WlI.LIAMS, K.C.I.E., and Mr. Hssar SPARKS). being the High Sheriff of Surrey, Sir R. E. WEBSTER, A.G-., Q.C., M.P., and Miss Wiansrim, Sir JOHN WXIITTAKER EL1.is, Bart., Sir JOHN GOLDNEY, Mr. H. R. GRAHAM, M.P., Mr. J. Harwoon JOHNSTONE, M.P., Mr. SKEWES Cox, M.P., Admiral 1\‘[i\cLr:Aa, General STEWART, General ERSKINE, Mr. and Mrs. F. E. EASTWOOD, Colonel Wnsron, Colonel GUDWIN AUSTEN, Captain FISHER Rows, Captain Hasrmos (Chief Constable), Mr. E. C. HEALEY, Mr. CIIADWYCK HEALEY, Q.C., Mr. T. T. METHOLD, Mr. CHARLES MUSGRAVE, Mr. G. F. GREGORY, Mr. Rooim GREGORY, Mr. J OIIN DIXON, and many others, while many other friends were unable to attend.
A correspondent, who has had the best means of judging of the late Mr. RoWCI.IFFE's powers of work, has sent us the following observations : Mr. E. L. ROWCIJFFE was a “ master!” in every way, but a thoroughly good-hearted one. In his early days at Bedfordrow the amount of work he got through was phenomenal. And he retained to the end this marvellous power of grasping and dealing with difficult and complicated matters in a very short space of time. Although he rarely loft his own room when in the office, one always knew, without asking, whether he was there or not. If he was there, everything and everybody about him was going at the highest possible pressure. Everyone who came in contact with him felt bound to do his utmost ; and you would rather do anything than fail in accomplishing what he expected to be done. He was thoroughly warm-hearted, and fully-appreciated good work from his staff, by whom he was very greatly esteemed. On the first day of last year, on his recovery from a severe illness, D. basket of flowers was sent to him from the clerks at No. 1, Bedford-row, accompanied by a ‘note containing their “respectful and earnest wishes for his speedy recovery and for a happy new year." In reply Mr; ROW
CLIFI-‘E wrote: “ Words fail me to thank you for the very beautiful present you have sent me and for the feeling which dictated it, and the affectionate good wishes that accompanied it. I have been among you now over fifty years, and it is one of the greatest pleasures of my life to recall the many mutual kindnesses which have passed between us during that time, and I sincerely share the hope you so warmly express that we may yet be spared to one another for at least some years to come.”
REVIEWS. e INSURANCE.
Tiin Laws or INSURANCE : FIRE, LIFE, ACCIDENT, AND GUARANTEE. EMBODYING Cases IN‘ run Enomsn, Soorcir, IRISH, AMERICAN, AND CANADIAN Coimrs. By JAMES BIGGS Ponraa, Barrister-atLaw, assisted by WILLIAM Fmwnu CRAIES, M.A., and THOMAS Snsrirnao LITTLE, M.A., Barristers-at-Law. THIRD EDITION. Stevens & Haynes.
This book contains a statement, clear in form and concise in language, of the various classes of insurance other than marine insurance. Save in the case of life and accident insurance, indemnity is the principle which underlies the contract of insurance. This piinciple, which is explained in the first chapter, carries with it the result that if, after receiving payment from the insurer, the insured is reimbursed from another quarter, he must repay the insurer. In other words, he cannot use his policy so as to turn his loss into a profit. Under Rayner v. Preston (18 Ch. D. 1) it seemed possible that the vendor of a house which is burnt down after the sale might be in this fortunate position, but Caslellain v. Preston (11 Q. B. D. 380) quickly deprived him of his advantage and brought out the insurance oflice unhurt. The person who really required protection was the purchaser who had omitted to insure. As Mr. Porter points out in the chapter on fire policies and assignments, the law on this point is not satisfactory. Notwithstanding the reasons adduced by James, L.J'., in Rayner v. Preston, the courts have declined to hold that the policy runs with the land. The French law, Mr. Porter says, is otherwise. There the policy is deemed to be accessory and to pass with the property. This rule is the only one that affords proper protection to purchasers, for it is usually impracticable for the purchaser to insure on his own behalf imme iately the contract of purchase is made. The second chapter deals with the important question of insurable interest. The Life Assurance Act, 1774 (which Mr. Porter, notwithstanding its new title, still refers to as the Gambling Act) requires the existence of an insurable interest as the basis of a contract of insurance, but it was left for the courts to decide what an insurable interest might be. From this point the various matters incident to policies of insurance are taken up in detail and are succinctly dealt with. The chapter onlien refers to several cases of interest which have been decided of recent years as_to the of persons who make payments for the purpose of maintaining po icies. The rules on the subject were formulated by FRY, 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. The history of some of the earlier life insurance ofiices raised important questions on the doctrine of novation, and the chapter assigned to this subject is copiously illustrated from the decisions in the European and Albert arbitrations. The book is a useful and trustworthy manual of insurance law.
Sir,—With reference to your comments in the last issue of the SOLICITORS‘ J OUBNAL on the report of the S ecial Committee of the Incorporated Law Society on Legal PPOOGJIITG, perhaps I may be allowed to mention a case of great hardship on an English litigant which recently came under my notice. U 1 A client of mine, an Englishwouian resident _in England, while
ll']&V8ll.1D8 on a local English railway, suffered serious injury through t enegligence of the company, and I was instructed to bring an action for damages. _The company was originally a purely English °l1°» and the railway is wholly situate in England. It was afterwards
I leased to one of the large Scotch companies whose southern terminus is in England, the Scotch company aying the shareholders of the English company dividends dependent on those of the Scotch com an . The principal otfice of the amalgamated companies is in Eflcogantl, and the secretary is resident there. A writ was issued, ithe English solicitors of the companies undertaking to accept service.
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 Scotland. The result was, she was compelled to compromise the claim on terms much less favourable to her than there was every reason to expect she would have obtained at the hands of an English jury, G.
REGISTRATION OF TITLE. [To the Editor of the Solicitors’ Journal.]
Sir,—I have read with great interest the articles on the Land Transfer Rules which have appeared in your recent issues, but there is one important point to which I should like to invite attentionviz., the assumption, prevailing throughout, and particularly in the second article, that the statutory fee simple is not the legal estate. This assumption seems to ine incompatible with the rule, referred to in the sixth article, that there cannot be two common law fees existing in the same land. Moreover, it seems to me that an estate conferred by statute must be a legal estate, being one which, before the Judicature Acts, would have been recognized by the common law courts. For this reason I should contend that any legal estate existing before registration becomes vested in the registered proprietor even where he is a mortgagor who has executed a legal mortgage and is registered with a possessory title only, the mortgagee being relegated to the position of a proprietor of a registered charge—viz., the possessor of a power only and not of an estate. This view seems to be confirmed by the fact that rule 97 specially provides for the case of a registered proprietor refusing to execute a transfer to the purchaser from the mortgagee—a provision which would be unnecessary if the latter had the legal estate. Further confirmation is afforded by the fact that a purchaser can be registered as proprietor without taking a conveyance or transfer, and that no express power to lease is given to a registered proprietor. These facts are only defects on the supposition that registration does not vest the legal estate.
I shall be glad to have this view confirmed by some other reader.
Manchester, July 13. JNO. T. Lmosnn.
[See observations in “ Current Topics.”—ED. S.J.]
Sir,-—Adverting to the letter of Mr. O. H. Morton in your issue of the 9th instant. and particularly to the third paragraph thereof, I still submit that the practical effect of the Council’s openly nominating candidates is to render the Council co-optative.
Whilst making full allowance for what Mr. Morton says, it is apparent the effect must be as I say, because it must necessarily 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 are unable to secure the support of the Council, are very seriously prejudiced by that fact alone, besides having the whole strength of the Council opposed to them.
The fewness of the independent candidates who present themselves for election seems to confirm my view that it requires more than ordinary courage on the part of would-be candidates to present themselves to the electorate without the otficial stamp of approval.
J lily 13- M.A. Oxox.
The Albany Law ._Tournal gives the following incident which occurred during the examination of a witness: “ Were you in the house?" asked Assistant United States Attorney Harry l_3.ine in court at Topeka of an old fellow who was on the witness stand inacriminal case from the Fort Riley military reservation. “I were,” responded the witness. “ \Vere you in the room where these prisoners were dividing the stolen goods P " “No,FI"we‘re in the other room." “What were you doing in the other rcomr Well, was tol‘ably busy." “Mr. Martin, that is not an answer to my question. I want you to tell the_ court exactly at what you were busy. ' \_Vell you see, mister, I am subyect to them ’ar epilemtic fits, and I were in thar havin’ one.” And then Judge Foster rapped sharply to brmg the coiirt-room to order and remarked on the side: “ I should think having fits was about the busiest work any man could engage
This appeal raised the question whether an order whereby a man has been adjudicated a bankrupt under section 20 and 121 of the Bankruptcy Act, 1883, falls within the words “ deed or conveyance” in the first section of the Middlesex Registration Act so as to require registration in the Middlesex Registry in order to perfect the oflicial receiver s title to land of the bankrupt in Middlesex. Under an indenture of the 7th of February, 1881, certain leasehold properties in Maida Vale, London, were demised to Michael Death for forty-one years. By two indentures of mortgage dated respectively the 4th of September, 189-1, and the 25th of December, 189-l, the said Michael Death mortgaged the said premises to Calcott to secure moneys advanced by Calcott. These mortgages were respectively duly registered in the Middlesex Land Registry on the 10th of October, 1894, and the 29th of December, 1894. Michael Death made default and Calcott entered into possession of the mortgaged property, and, in exercise of the power of sale conferred upon him by the said mortgages, on the 16th of November, 1897, contracted to sell the premises to Elvin. Just prior to completion of such sale Elvin, the purchaser, ascertained that Michael Death was and had been since 1887 an undischarged bankrupt, having been adj udicated bankrupt by an order dated the 28th of January, 1887, made under section 20 of the Bankruptcy Act, 1883, and that on the 29th 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 orders the official receiver became Michael Death's trustee in bankruptcy. The oflicial receiver had registered no memorial of his title to the said premises. In view of the above facts the purchaser refused to complete his contract. The vendor insisted that the official receiver not having registered his title, had no title as against the vendor’s registered mortgages, and this summons was issued by the vendor asking for a declaration that notwithstanding Michael. Death's bankruptcy in 1887 the vendor as mortgagee had a good title to the property. 'I‘he summons was argued before Kekewich, J ., on the 31st of March, 1898, when his lordship delivered his judgment and held that the title of the vendor was good by virtue of his registration, and was prior to the official recciver’s, as he had not registered his title. The case is reported in 46 W. R. -157. The purchaser appealed from that decision.
Tns Coca-r (Lr:wr.sr, M.R., and Cnrrrr and Comma, L.JJ.) allowed the figpeal, and held that the order of adjudication in bankruptcy was not ade or conveyance within the statute 7 Anne c. 20, and therefore did not require registration ; that the oflicial receiver’s title was prior to that of Calcott, and that Calcott had therefore no title to the property in questi0n.—Covxsnr., Romlen and Carrington; Warringlon, Q.C., and Muir Jllackmzie ; Ingle Joyce. Soucrrons, Percy 6'. Ray; G. L. B. Galoott ,' Solicitor to the Board of Trade.
This was an appeal by the defendants from a decision of Channell, J . , at chambers, a rming the decision of the taxing-master, who had apportioned certain costs of the action between the plaintiff and the defendants. The case was argued on the 30th of June and the lst of J uly, 1898, and judgment was delivered on the 7th of J uly.
Tm: Coum" (Lnmnar, l\I.R., and Cnrrrr, L.J.) allowed the appeal, and remitted the matter to the taxing-master that he might review his taxation.
The judgment of the court was read as follows by
Lmnusr, M.R.—In the action the plaintiff sought to recover damages from the defendants for a libel by the defendants on the plaintiff. The defendants defended the action, and by a counter-claim sought to recover damages foralibel on themselves by the plaintiff. The action was tricd with a jury, who found a verdict for the defendants on the claim and for the plaintiff on the counter-claim, and judgment was entered accordingly for the defendants on the claim with costs, and for the plaintiff on the counter-claim with costs. The costs have been taxed, and the taxing-master, following what he understood to be the rule laid down in Shrapnel v. Laing (36 W. R. 297, 20 Q. B. D. 334), has apportioned some of the costs of the action between the plaintiff and defendants. The defendants complain of this, and contend that none of the costs of the action ought to be thrown on them. Channell, J ., at chambers, upheld tho master’s decision, and the defendants have appealed to this court. The defendants rely on Srmer v. Bilton, No. 2 (27 W. R. 472, ll Ch. D. 416), which was approved and followed by the Court of Appeal in Mason v. Brmlini (29 W. R. 126, 15 Ch. D. 287) and Rs Brown, Ward v. Moms (31 W. R. 936, 23 Ch. D. 377), and still more recently in the unreported ease of Russell v. Russell (19th of January, 1898), which was an appeal from the Divorce Court. Having carefully studied these cases and compared them with Shrapnel v. Lniny (ubi supra), Heuitt v. Blumer (3 Times L. R. 221), Fimka v. Brown (W. N., 1891, p. 116), andthe earlier
case of Bainea v. Bromley (29 W. R. 245, 6 Q. B. D. 197), we are unable 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 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 other hand there are decisions that no such apportionment can be made. In Bainn v. Bromley and in Shrapnel v. Lainy (ubi supra) the late Master of the Rolls expressed his opinion that costs common to both claim and counter-claim should be apportioned, and he suggested that even the costs of the writ might be so dealt with (see 20 Q. B. D. 339), because the defendant got the benefit of his counter-claim by means of the writ issued by the plaintiff. But Lord Esher was careful to add that it was unnecessary to decide such questions, as they did not arise. We will make another preliminary observation before examining the decisions more closely. We have not to consider how an order should be drawn up so as to give the general costs of an action in which there is a claim and a counter-claim to that party who recovers more than is recovered from him. It is unnecessary to consider such cases as Lows v. Hal/no (31 W. 11.400, 10 Q. B. D. 286) and Lunrl v. Campbell (33 W. R. 510, 14 Q. B. D. 821). In such cases the judge who tries the action without a iury_has greater power over the costs than a judge who tries an action with a jury. In the present case judgment has been pronounced ani. drawn up, and all we have to do is to construe and give effect to it. Whether an action is brought in one division of the High Court or another, whether it has been tried with a jury or without a jury, the construction and legal consequences of the judgment when drawn up must in principle be the same, although the costs to be taxed may be
difierent in the one case from those in the other Now let take the J
judgment in this particular case. There were some separate oraers as to costs, but it is imnecessary to refer to them. By the judgment as drawn up, the plaintiff has to pay the defendants the costs of the action; not some of them or some portion of them, but all of them. There are no separate issues in the action the costs of which have to be borne by the defendants. In considering what are costs of the action, the counter-claim, as distinguished from the defence, ought to be disregarded. The costs of the action ought to be taxedvas if there were no counter-claim.'“Whether both parties fail (as m Saner v. Dillon, Mason v. BrérilTrTi,-Ei1d Russell v. Russell, ubi mpra), or whether both succeed (as in Balms v. Bromley, Ward v. Morse, Shrapnel v.Laing, and Hewitlv. Blumer, ubi supra), or whether one fails and the other succeeds, can in principle make no difference. This was pointed out and decided in Ward v. Mans (ubi supra) ; and Baines v. Bromley and Shrapnel v. Laing (ulri supra) in no way conflict with that decision. ln Baines v. Bromley the defendant recovered on his counter-claim more than the plaintiff recovered on his claim,but the order gave the plaintiff the costs of the action and he was held entitled to them accordingly. No question of apportionment was raised or decided, although Lord Esher, in his judgment, stated what, in his opinion, ought to be done as regards costs common to both claim and counter-claim.
Shrapml v. Laing and Hewett v. 1i'lumer(ubl.mpra) were precisely similar cases, and are open to precisely similar observations. In Finaka v. Brown (ubi supra) the plaintifi recovered on his claim more than the defendant 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 from the foregoing rule and wanted the whole costs of the litigation ; but the Court of Appeal, following Shrapnel v. Laing (ubi supra), decided against him. All the authorities agree so far—i.s., they all decide that a p aintift who is to pay or be paid the costs of his action is to pay or be paid the whole of _s_uch._Q08l=I as if there were no counter-claim. Next, as to ~r-claim. TheTdéfends’nf’ has as pay the cosli of this, and the counter-claim is to be treated as an independent cause of 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 mislead if not explained and properly understood. What are costs of a counter-claim? The answer must be, the costs occasioned by__it. No costs not incurred by reason of the couiitef-'c‘l’airn“6a‘i1“be costs of the counter-claim. The fact that if there had been no action the costs of the counter-claim would have been larger, because the defendant would then have had to issue a writ and take other proceedings, does not make costs not incurred costs incurred; and in considering what the costs of a counter-claim really have been in any particular case the costs saved by not bringingacross-action cannot be treated as costs incurred. The
introduction of counter-claims has given litigants advantages in this respect. Cgunter-claims, although cross-actions for all purposes of procedure and eiid€ii?c“,'cost' less than actions, and the party who has to pay the costs of a counter-claim '§s"t‘§“tiTe—5éneflt of the cheaper procedure. To include in the costs of a counter-claim any costs not occasioned by its being a counter-claim, but saved by its being what it is, appears to us wrong in principle and opposed to Sonar v. Bilton and Ward v. Morse (ubi supra). If Lord Esher really meant to express a contrary opinion we cannot agree with him. \Ve are satisfied that there is no decision to that effect. But, as pointed out by Lord Esher, there may be costs brought in for taxation which have been incurred partly in support of_ or in opposition to, a defence, and partly in support of, or in opposition to, a counter-claim—¢._q., where there is a defence of set-off equal to the plaintiff's demand, and a counter-claim for more than the plaintiff's demand. In such cases the taxing-master must apportion the costs as best he can, and fix the amount applicable to the defence and the amount applicable to the counter-claim. Where there are no separate issues requiring special treatment the costs of the defence will be costs of the action; the costs attributed to the counter-claim will be costs of the counter-claim. Costs common to both defence and counter-claim must necessarily be dealt with in this way. But to do this is very different from apportioning what are properly costs of the action, and such
costs when ascertained must be paid by the party ordered to pay them. They cannot have been increased by the counter-claim, and no part of themcan be properly regarded as costs of the counter-claim. In the present case the master has lost sight of those principles, and has apportioned some costs which are properly costs of the action, and has thrown some part of them on the defendants. In other instances he has tried to bring about a fair apportionment by equalizing the amounts allowed to each party, so as to set one off against the other. The result is that the defendants receive less than they ought in respect of the costs of the action, and pay more than they ought in respect oi the costs of the counter-claim. The case must therefore go back to the master in order that he may review his taxation in accordance with the principles above explained, which are in accordance with all the previous decisions when carefully examined. The costs of this application, both here and below, willbe reserved until we know the result of the taxation.—Cov.\'sai., Bouq/ield, Q,.O., R. H. Bray, Q.C., and Crane ; Eldridge. Souciroas, Indermaur §~ llrown ; i5'u_qd¢-n 5- Harjhrd. [Reported by R. 0. Maciraszis, Barrister at-Lawn]
_ High Court—Chancery Division. Re BATCLIFF. Kekewicli, ]. 6th July.
Robert Ratcliff by his will dfitedd the lltli of Jlune, fl8‘g, ga\;1eJand bequeathed all his property rea an persona to is wi e anna ane Ratcliff, and appointed her’ sole executrix of hiii will ; and after directing payment of various legacies after her death he appointed Joseph Nixon “ residuary legatee after all the legacies are paid after my wife's death.” He did pot appoint arty tll;fll3€t6St0f tléis will, which coqtaiuqd lneitherppy power or eappom men o -rus es nor any inves men c ause. e testator died, and his will was proved by his widow on the 12th of November, 1897. On the 9th of May, 1898, Joseph Nixon, “ the residuary legatee," took out the present originating summons, as a beneficiary, under srction 1. sub-section (l), of the Judicial Trustees Act, 1896, against Mrs. ltatcliif, the widow and sole executrix of Robert Ratclifi, asking that a certain gentleman--a solicitor, or some other fit and proper person or company, might be appointed a judicial trustee of testatcr’s will either jointly with Mrs. Ratcliff or, in the altomative, as sole trustee. The summons was supported by a written statement (1897 Rules, r. 4) verified by an. afiidavit (rule 4 (2)) filed by the applicant under the “ Rules under the J udilcial Trustees Act, 1896," made in 1897 in accordance with section 4 of t at Act. It appeared from this statement that the testator's property amounted in value to between_£28,000 and £29,000, of which £2,500, approximately, was represented by real estate, the balance of about £26,000 being personal estate. The greater part of the personal estate was at the present time invested in, or representetl by,tsqcuri€ies :ffBl.lC(l11 a degcgipfion as is not ault;hor;i€ed aslii priilpefi inves men or rus an s. e egacies given y e wi w ic included onelof £1,000 lo libs applieanta amolpntled iln all go about'£:,0100, and the app icant c aime to be enti ed a so utoy su ject to t e il'e interest“ of Mrsi] Ratlpliff, to the whole of the lbalance, of the property of the tes tor t oug owing to the informa nature of the will, some question might be raised with regard to the real estate. Mrs. Ratcliif was about seventy-two years of age, and it was alleged as a grou_nd for the present application that, owing to her advanced age, she was unable lg attend properly go the management of so large an estate,lof which i e was tenant for ife and as sole executrix had entire contro . It was alleged, moreover, that ,her interest as tenant for life conflicted with that of the appliaciiut as remaliluderman, inasmuch as she would, as was thq fact natur ly desire t e property to remain in its present state o investment at a high rate of interest, whereas the remainderman desired it to be invested in securities in which the corpus would be securely preserved and though the slightest reflection on the honesty of the tenant for’ hf; was expressly disclaimed, it was submitted that the present state of n airs was undesirable. The applicant also leged. as “exceptional circumstances specially affecting the administration of the trust” (1897 Rules, r. -1 (6) ) that without the authority of the court no trustees of ghe teitaltofls property could be appointed; that the testator‘s will was in orma t roughout and it was almost certain that questions would arise as to its propel‘ construction, on which the opinion and decision of the court woud have to be obtained. The applicant was willing that the judicial trustee, if appointed, should be remunerated out of the corpm of the property. The application was opposed by the widow. Section 1 of the Judicial Trustees Act, 1896, provides (subsection (11)) that, “where application is made to the court by or on behalf of . . . a trustee or beneficiary, the court may, in its discretion, appcintaperson (in this Act called a judicial trustee) to be a trustee, . . . . either jointly with any other person, or a sole trustee . . .” Section (4) provides (1) that " rules may be made for carrying into effect this Act "; and (2) as to how such rules may be made. The “Rules
' - i I7 ' ' . 1‘-‘i§‘.‘i'.,§,‘;i’..?.t‘.‘.‘.‘,f‘£‘.§ $525.1‘; é2°;;.,1§.‘i?¢ .. 31212.5‘ 3.fiL.‘;'§lI;‘ll’ ifitiii" Chancery Division, and (a) if not made in a pending cause or matter, shall be made by originating summons." Rule _4 (1) “ Where an application is made for_ the appointment of a ]l1d1C1lllt1'llBU€0 by originating izummons, the applicant inust, when he takes out the summons, supply
or the use of the court a written statement containing_the following particulars” (as thereinafter set out) “ so far as he can gain information
with regard to them.” (i) “Any exceptional circumstances specially affecting the administration of the trust." (2) “An affidavit by the applicant verifying the statement shall be suflicient primrifacie evidence of the particulars contained in the statement.” Kraiiwica, J., said that the power of appointing a juiicial trustee given to the court by the Judicial Trustees Act, was by the express terms of section 1, sub-section (1), of the Act cnlirely a. disc tionar power, and that under the circumstances, in the absence of misconduct on the part of the executrix, and the executrix being unwilling that a judicial trustee should be appointed, he did not think that a judicial trustee should be forced on her against her wish. As, however, in the present case the main portion of the trust had to be executed after the death of the tenant‘ for life, the sole executrix, and improper securities had to be realized and re-invested, his lordship directed that the summons should be amended by making the application “in the matter of the Trustee Act, 1893,” and tbata trustee should be appointed under that Act to act with the widow, and ordered that the matter should be accordingly remitted to chambers with an instruction that if Mrs. Ratclifit nominated a proper person to be trustee, such nominee should be accepted. His lordship also directed that the casts of all parties as between solicitor and client should be paid out of the estate.—Cour1sar., S. 0. Brwkmaater; Warrington, Q.O., and J. G. Wood. Soniciroas, Jllcrriman, W/rite, §- Thompson; Ford, Lloyd, Bartlett, §- Mialislmore, for Tooric giBartlett, Loughborough. [Reported by C. C. Hsxsanr, Barrister-at-Law.]
The question raised in this action was whether a quarter’s payment in advance to the committees of a lunatic’s personin respect of a fixed annual allowance ordered for her maintenance was apportionablo on the death of the lunatic before the expiration of the quarter for which the advance was made, so that her legal representatives became entitled to have a proportionate part of the amount so paid handed over to them by the committees of the person. By an order in lunacy dated the 24th of March, 1896, Isabella R. Read and the defendant, Constance R. Read, were appointed committees of the person and the oflicial solicitor was appointed committee of the estate of Mrs. I’., widow, a certified lunatic, and there was allowed for her maintenance £2,500 per annum from the 29th of January, 1896. The said order provided (inter alia) that the said defendant as one of the committees of the person should be at liberty to reside with the lunatic and to retain for her use her leasehold residence and stables in London together with her furniture, horses, carriages, and other effects there, and the said defendant resided there accordingly until the death of the lunatic. After the dale of the said order the committee of the estate paid to the committees of the person, out of the estate of the lunatic, the allowance of £2,500 per annum for her maintenance by equal quarterly payments, each payment being made in advance, and it was not disputed that the lunatic was always properly maintained until she died. On the 26th of October, 1896, the sum of £625 in respect of the said maintenance allowance for the quarter ending the 29th of January, 1897, was paid to the committees ot the person. On the llth of November, 1896, the lunatic died. The plaintiifs, who were the executors of her will, claimed a declaration that the defendant, Constance R. Read, and the estate of the said Isabella R. Read, who died in May, 1897, were jointly and severally liable to repay to the estate of the lunatic the proportionate part for the period subtequent to her death of the quarter's allowance of £625 paid to them for her maintenance, or in the alternative to repay the £625, less any sums properly paid for the lunatic’s maintenance between the 29th of October, 1896, and her death, with an inquiry in the latter alternative as to such sums, and payment in either alternative of any amount found due to the plaintiffs. For the defendants it was contended that, the lunatic having been properly maintained, they could not be ordered to repay any part of the said sum of £625, the committees of the person being entitled under the scheme of the above-mentioned order to retain any savings thereout for their own benefit: see Re Ponsonby (3 Dru. 8.: \Var. 27, 31, 2 Connor & L. 30, 32), Grou-mar v. Draw (2 Knapp 82).
Roman, J ., raid that thpfipoint was a novel one and of some diliioulty, but he thought the plain ' s were entitled to something. Tho sum fixed by the order in lunacy was clearly fixed with reference to the whole year, and not to a quarter or any other portion of a year. It was arranged between the committee of the estate and the committees of the person that payments on account should be made in advance, and that was a reasonable arrangement on the footing that the lunatic should be maintained for the whole year. But the lunatic was only maintained for nine months, and yet the committees of the person were claiming a whole year’s allowance. The payments by the committee of the estate were not made on that footing. The lunatic’s executors were therefore entitled to recover such part as could not be said to have been properly expended by them in her maintenance, regard being iiad to the provisions ot the order in lunacy. His lordship thought that Gi'08!‘nl0i' v. Jmrx was sufliciently dealt with by Uiirus, L.J., in Re F|'t’llL‘/A (16 W. R. 657, L. R. 3 Ch. 317), and the observaiious of Lord St. Lsonards in Ra Ibmronby must be considered lo be inadc with regard to the ordinary case where the lunatic was properly maintained for the whole year. One of the committees of the person had died, but the money was paid to both, and they were both accountable in equity.—Cor.\'ssi., Nvville, Q.O , and 12.]. I'ark¢r; Farwell, Q,.C., and S. Divlcinmi; Ir‘. F. Buckley. Soaiciroas, llickin, Smith, g Cape! Cure; Longboumv, Stevens, Q Go.
[Reported by J . F. Water. Ilarrislzar-at-Law.}