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Hargrave v. Kettlewell ........... 110 Hill & Co. v. Hill

Exchange and Hon Warehouses v. Association of Land Financiers (Limited)

112
111

109

120 114

Fine Art Society v. Union Bank of ...... 111

.... 110

Lever & Co. v. Goodwin Bros.
Margary and Another v. Robinson 111
Moore v. Morton
Purrett and Green v. The Duke of
Bedford

.... 112

108

110

Reg. (on the Prosecution of J. Pritchard) v. The Mayor and Corporation of Bangor South Wales Mineral Railway Co. v. Davies

London

.............. 112
Municipal Trusts Co., In re........ 120

Oxford Building and Investment
Society, In re ..

122

116

including in that term not only the person who has power to "retain and employ" the solicitor, but also any person "liable to pay" the solicitor. But then, as we pointed out last week, the lessor, in case the lessee does not retain the lessor's solicitor, is both the person having power to "retain and employ" and also the person liable to pay " in the first instance.

A POLICE CONSTABLE is not entitled to be registered as a ParliaLeamington Priors Gas Co. v. Davis 123mentary voter. So it was decided in Doulon v. Harris on Saturday Leigh v. Leigh.... 110 Lucas v. Harris last, and this decision appears to be unquestionably correct. The Miller v. Douglas question turns upon the construction of sub-section 7 of section 28 of the Parliamentary and Municipal Registration Act, 1878 (41 & 42 Vict. c. 26). By this sub-section a revising barrister "shall expunge the name of every person, whether objected to or not, where it is proved" to him "that such person was, on the last day of July then next preceding, incapacitated by any law or statute from voting at an election for the Parliamentary borough to which the list relates." The incapacity of constables depends on different

The Birmingham and District Land
Co. v. The London and North-
Western Railway Co............................. 109

Reg. v. Judge of the City of London Court

Tyne Boiler Works Co. v. Tynemouth Union

123

110

The Solicitors' Journal and Reporter. statutes, borough constables, county constables, City of London

LONDON, DECEMBER 11, 1886.

CURRENT TOPICS.

AFTER THE RISING of the courts on the 21st inst., all the offices of the Supreme Court will be closed from and including Friday, the 24th inst., to and including Monday, the 27th inst.

THE ARRANGEMENTS for the judge's chamber work of Mr. Justice KAY and Mr. Justice STIRLING during the next sittings will be as follows:-Mr. Justice KAY will sit in chambers on Tuesday and Friday afternoons, and Mr. Justice STIRLING (sitting in court) will take chamber work every Friday.

WE PRINT elsewhere a letter with reference to the election under clause 6 of the Remuneration Order which furnishes a very important contribution to the discussion on the subject which has taken place in our columns. It was taken for granted in Re Allen (ante, p. 78) that notice of election to charge on the old system, given in writing to the lessor, was a sufficient notice under the clause. And in June, 1884, the Council of the Incorporated Law Society held (see Digest, p. 17) that "a lessor's solicitor may and should, where he desires to elect under Schedule II., under clause 6 of the Remuneration Order, give notice to the lessor as the client under the rule; and a lessee entering into a contract for a lease must be assumed to know this, and should inquire or stipulate if he wishes to avoid paying under Schedule II." We also came to the conclusion that this is the proper construction of the Remuneration Order, for the reasons we gave last week, although we fully admitted the allegation of our esteemed correspondent "E. E. L.," that common sense was against our view. Our correspondents "S.," however, have now adduced a considerable authority in favour of "E. E. L.'s" opinion. It appears that in 1884 Master SKIRROW, after consultation with other masters, decided that notice by the lessor's solicitor to the lessor, without notice to the lessee, did not make the lessee liable to more than the scale charges for lease and counterpart. On inquiry we have been favoured with particulars from which it appears that in the case in question the lessor's solicitor was not retained by the lessee to prepare the lease, and that the notice under clause 6 was given by the lessor's solicitor to the lessor upon his being first instructed by the lessor, but was not brought to the knowledge of the lessee until the lease and counterpart had been exchanged. The case, in fact, is a direct decision by the masters in favour of "E. E. L.'s " view; and although we retain our opinion, and think that the decision is wrong on the construction of the Order, we suppose that, until the matter has come before a court for decision, the master's opinion must be accepted as governing the practice. But if so another question arises. The decision appears to be only that "notice to the lessor without notice to the lessee" is not sufficient. Will notice to the lessee without notice to the lessor be sufficient; or must notice be given both to the lessor and to the lessee? There is certainly some foundation for this view in the definition of "client "in the Remuneration Act, which may be read as

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any such office, or within six calendar months after he shall have quitted the same, be capable of giving" the Parliamentary vote. It was held in Hayward v. Scott (28 W. R. 988), that the disqualification arising from the receipt of parochial relief does not come within sub-section 7 of section 28 of the Act of 1878 so as to entitle the revising barrister to expunge the name of a pauper, and an attempt was made to argue that this case governed that of constables. But on reference to section 36 of the Act of 1832, which applies to paupers, it will be seen that it imposes a disquali. fication only, not an incapacity, so that the cases are clearly distinguishable; and, indeed, the word "incapacity" in the Act of 1878 may be directly referred to, and construed by, the light of the words "no person shall be capable in the Metropolitan Police Act. An argument that the Act of 1878 does not apply, on the ground that the incapacity of the constable may be removed before the next period of registration, goes to the hardship of the case only, and this hardship is so small that it is hardly worth

consideration.

WE HAVE RECEIVED a copy of a correspondence which has recently passed between an eminent firm of solicitors and a distinguished Queen's Counsel and his clerk on the vexed question of refresher fees. It does not seem necessary to introduce any personal element into the question, for the course adopted by the learned Queen's Counsel and his clerk is one which we believe all his brethren in the same rank, and avowedly adopting the practice of special fees, would insist upon. On the payment of fees relating to a case in which he had been engaged as leading counsel, his clerk required a refresher fee of twenty-five guineas. The solicitors, who were acting as London agents for a country firm, referred to their clients, who repudiated their liability to pay more than ten guineas (the highest refresher fee allowed on taxation under R. S. C., 1883, LXV., 27 (48)), but expressed their willingness to pay fifteen guineas. This fee was declined. The solicitors do not question the right of the learned counsel or his clerk to stipulate beforehand the amount of fees and refreshers, but they contend that, unless this stipulation is made, they and their clients are entitled to assume that the fee named in the Rules of Court would be accepted; and they point out that the client is bound to pay that fee only, unless a bargain to pay more has been previously made." They do not refer to the resolution of the Council of the Incorporated Law Society in 1883 (28 SOLICITORS' JOURNAL, 167) recommending, with reference to refreshers, "that members of the society should insist on these fees being limited to those allowed on taxation in all cases in which counsel or their clerks do not intimate to the solicitor before accepting the brief that a larger, and if so what, fee will be expected," but it will be seen that their contention is identical in purport with this recommendation. We think, however, that

there may be some misapprehension as to the application of the recommendation to the case in question. The Court of Appeal, in Re Harrison (34 W. R. 645), held, reversing the decision of Mr. Justice PEARSON, that "the authority to give special fees of larger amount than those fixed by the rule may be either express or implied," and we imagine that very little evidence would be necessary to convince a court that a client must know that the services of a counsel of great eminence and skill cannot be obtained without paying special fees, and, therefore, must have impliedly authorized his solicitor to pay such special fees as might be reasonably necessary to secure his services. However this may be, the position of a solicitor with reference to this matter of refreshers is one of considerable difficulty. The highest authority in his profession advises him to insist on refreshers being limited to the amounts allowed on taxation, unless counsel or their clerks stipulate to the contrary before accepting the brief. But counsel and their clerks, rightly or wrongly, do not choose to be bound to stipulate beforehand as to refreshers. They are in no way under the jurisdiction of the Council of the Incorporated Law Society, and, in the case of eminent counsel whose services cannot be dispensed with, there are no means of placing any pressure on them. Under these circumstances, probably the best practical advice which can be given is that solicitors, in all cases in which clients insist on an eminent counsel being retained, should, before delivering the brief, instead of waiting for a stipulation as to refreshers, inquire of the counsel's clerk the amount of the refresher fee which will be expected, and so obviate subsequent disputes.

THERE WILL BE FOUND elsewhere a circular which has been issued by the Gloucestershire and Wiltshire Law Society to its members on the subject of charging purchasers with auctioneers' fees at auction sales. It appears that, although the practice of charging contract fees for the benefit of the vendor's solicitor has been generally abandoned in the district, there is still in some quarters a disposition to retain the old practice of throwing the payment of the auctioneer on the purchaser. We think that on consideration the practitioners who still adhere to this custom will see that it is undesirable to place themselves in antagonism to the general opinion of the profession by adopting a course to which, in 1878, the Council of the Incorporated Law Society recorded "their great objection," and which has been condemned by their own society, by the Bristol solicitors, and even by practitioners in the stronghold of these ancient customs. Cornwall. We are surprised to hear that the practice even of a contract fee to the vendor's solicitor still lingers in some parts of England; it ought to be abandoned everywhere.

THE SEVERE ATTACK of cold from which Lord Justice BowEN has been recently suffering, and which caused his absence from court on several days last week, has resulted in a strict investigation into the causes of the wintry blasts to which the judges of Court of Appeal No. 2 are subjected. Means are now to be tried with a view of excluding these mysterious draughts, and it is to be hoped that ultimately every learned judge may be enabled to sit in court without the addition to his official costume of a warm muffler round the neck.

Lord Justice Fry will preside at a meeting which will be held on an early day to consider the ad visibilty of establishing a society to encourage the study and advance the knowledge of the history of English law. It is suggested that the society shall be called the Selden Society, and that its object shall include (besides meetings for the reading and discussion of papers) the printing of nedited MSS. and the publication of new editions and translations of works having an important bearing on English legal history, the collection of materials for a dictionary of Anglo-French and of legal terms, and finally the collections of materials for a history of English law. The following have already expressed approval of the society:-The Earl of Derby, Lord Herschell, the Home Secretary, the Attorney-General, Messrs. Montague Cookson, Q.C., J. F. Moulton, Q C., John Westlake, Q.C., F. Meadows White, Q.C., R. Campbell, P. E. Dove, Hubert Hall, F. E. Sawyer, F.S.A., Professor F. Pollock, John Evans, President, and H. S. Milman, director of the Society of Antiquaries; Professors A. V. Dicey and T. E. Holland, Oxford; Rev. W. Cunningham, B.D., and F. W. Maitland, Cambridge, &c. &c. Professor W. W. Skeat has kindly offered help towards the dictionary. Any person interested may com. municate with Mr. P. Edward Dove, 23 Old-buildings, Lincoln's-inn.

REGISTRY WITH GUARANTEED TITLE THERE is a marked difference between registration with indefeasible title and registration with guaranteed title; the former, adopted in England by Lord Westbury's Act and Lord Cairns's Act, has been most unsuccessful, the latter, adopted in Australia, has had a marked success. Some of our readers may enquire, What do we mean by registration with guaranteed title? It means simply this, that, on payment of a moderate sum by way of insurance, the State guarantees, not that the title is good, but that on eviction the sum assured shall be paid. Sometimes the guarantee is not in favour of the registered owner, but in favour of any purchaser from him; this modification will, as we shall shew, enable us to dispense in all cases with official investigation of title. Where a man is, rightly or wrongly, registered with an indefeasible title he has an absolute right to the land, he may even be able to eject a person who has bought and paid for the land, and has himself been registered as owner with an indefeasible title. This requires some explanation. Let A. be the registered owner, then let B., by fraud, obtain a conveyance from A., or forge a conveyance to himself from A. (and it must be noted that, whatever precautions are taken against fraud, a bad man will sometimes succeed in evading them); then let B. be registered as owner. In any reasonable system of registration A. would be able to have the register reformed as against B.; but now suppose that B. conveys to C., an innocent purchaser. C. is registered with an indefeasible title, A. can have no remedy against C., for, if he had, all the benefit of registration would be lost. In other words, A. loses his land and is without any remedy. Now, let us consider what would happen under a system of guaranteed titles. A., as being the person who was rightfully on the register, would keep the land; C., who had paid his money on the faith of the register being correct, would be recompensed by the State or the official insurance fund for the loss that he had incurred.

The whole system of guaranteed title is discussed at length in an excellent little book on "Registration of Title to Land," by Mr. C. F. Brickdale, and the rest of this article is founded upon his work.

*

It has often been alleged by those who are opposed to registration of title that the reason why it has failed in England, though it has been successful in Australia, is-(1) the facility with which titles can be placed on the register in Australia in the first instance owing to their recent origin in a Crown grant; (2) the ease with which registered land can be described in Australia owing to the Government survey on which the grants are founded; (3) the prevalence in England of settlements importing difficulty in all registered holdings. Mr. Brickdale points out that these reasons are incorrect-(1) many of the titles in Australia are more than sixty years old, and, owing to bad conveyancing, the early titles are often very complicated; (2) the inaccuracy of the surveys in Australia produces very great difficulty in the way of registration; (3) it is not found in Australia that settlements produce any difficulty in registration. Recent discussions must have convinced the most sceptical of our readers that, even in this country, they would produce no difficulty.

As the alleged reasons of the difficulty in registering titles in England exist also to Australia, and there is no difficulty in registering titles in that country, it is clear that we must seek some other reasons for the different result in the two countries. Mr. Brickdale shews conclusively that the reason for the difference is that here we have tried registration with indefeasible title, there they have tried registration with guaranteed title.

The practical working of the two systems is very different. Under the registry with an indefeasible title the investigation must be of the strictest possible character, thus giving rise to expense and delay. Under registration with a guaranteed title, where the mischief done by accepting a bad title is not irremediable, the title need only be investigated in the manner in which it is investigated by an ordinary purchaser. In fact Mr. Brickdale assures us that in Australia the registrar accepts titles rather more easily than an ordinary purchaser does. He says that, in twenty years' experience of the system in South Australia, only two instances have occurred of the register being altered by the court, in both of which cases

* "Registration of Title to Land, and how to Establish it without Cost or Compulsion." By C. F. BRICKDALE, Barrister-at-Law. Edward Stanford.

the registered owner was a volunteer, and that not one single instance has occurred where the title of a registered purchaser for value has been disputed. In Queensland, Tasmania, and New South Wales, in each of which places the system has been at work for about eighteen years, no instance has occurred of a title being cancelled. In each of the Colonies of Victoria and New Zealand one title has been cancelled.

All over Australia the assurance fund is an ad valorem charge of one half-penny in the pound, except in Tasmania, where only one farthing is charged, with the result that, after paying all compensations, the funds now amount to £180,000.

Mr. Brickdale suggests that in ordinary cases no investigation of title, either on the original register or afterwards, should be made by the office; that the investigation should be made, as at present, by a solicitor; and that official investigation should only be made in cases where he hesitates to say that the title is good. In many cases of this nature the title might be accepted on payment of a larger sum as insurance against an extra risk.

It may be asked, Will not the liberty to a purchaser to choose his own solicitor lead to risk to the office? The answer, worked out with much detail by Mr. Brickdale, is this:-Let the guarantee given to the registered owner be, not that his own registered title is good, but that the last preceding registered title is good; in this case a purchaser has just the same motive to employ a careful solicitor that he has at present, as, if the solicitor makes a mistake, the purchaser may lose his land. Possibly it might be possible to combine both systems of guarantee; to allow a purchaser either to be content with investigating the title by his own solicitor, in which case the guarantee would only be that the last title on the register was good, or to require a guarantee of his own title, in which case an official investigation as from the last registration would be necessary.

Under the proposed system the first person who registers his title receives no guarantee at all, so that there is absolutely no occasion for any official examination of his title. On the next occasion of a purchase for value, the purchaser, on payment of the prescribed amount to the insurance fund, obtains a guarantee of the title first placed on the register, but he obtains no guarantee as to any intermediate voluntary dealings with the property.

It is obvious that registration of this nature is not inconsistent with allowing the rights of persons in actual possession of the property to be paramount to the rights of persons whose titles are registered, so as not to interfere with the salutary operation of the Statutes of Limitation in giving legal validity to the re-adjustment of boundaries without formal assurance, a process which is constantly taking place, and which it would be most unwise to interfere with. Those of our readers who take interest in land transfer cannot do better than peruse Mr. Brickdale's excellent little book, and judge for themselves whether the system that he advocates will work well in this country.

CONCERNING SEARCHES.
(XVII.) JUDGMENTS.

II. THE MODERN LAW OF JUDGMENTS (continued). The searches to be made for judgments.-In formulating practical rules as to the searches which ought to be made on behalf of purchasers and mortgagees, it will be convenient, in the first instance, to assume that the vendor is seised in fee simple, and to consider the searches to be made having regard to the local situation of the property-i.e. (a.), generally, and (b.) when it is within the registry counties or the jurisdiction of either of the Palatine Counties of Lancaster and Durham.

General rules: where the property is not affected by the Registry Acts for Middlesex and Yorkshire, and is not within the palatine jurisdictions.

Place of search. The Department of Judgments in the Central Office (established by the Supreme Court of Judicature (Officers) Act, 1879, s. 4) at the Royal Courts of Justice (see R. S. C., 1883, LXI.).

made for official searches and the issue of certificates of the results, which are to be conclusive in favour of purchasers. It is necessary to specify in the requisition the names in which searches are to be made and all other sufficient particulars. The fees charged are regulated by the order as to Supreme Court Fees, 1884 (Nos. 112, 114, 115, 118). The order provides for a continuation search, if requested within fourteen days of any former search. The R. S. C., December, 1882, s. 2, r. 4, also provide for a continuation search under the Conveyancing Act, 1882, to a date not more than one calendar month subsequent to the date of the first certificate.

Length of search in registry of judgments.-The effect of 2 & 3 Vict. c. 11 is to make five years sufficient in all cases (see ante, p. 58).

Against whom to search-In strictness, as under the old law (ante, p. 25), the search should be against all persons who have been owners of the lands or any interest therein liable to the operation of a judgment for an indefinite period before the search (Dart V. & P. 484, 491). It is true that judgments are barred by the Real Property Limitation Act, 1874, after twelve years (Ex parte Tynte, 15 Ch. D. 125; Evans v. O'Donnell, 16 L. R. Ir. 445), and therefore it might seem that no search for judgments ought to be necessary now that twelve years have elapsed since the 27 & 28 Vict. c. 112. But judgments may be kept alive by acknowledgment or payment of interest, though not, it is submitted, by simply re-registering them; and it would, therefore, be dangerous to assume that a judgment more than twelve years old has been satisfied. However, it is the practice now, as it was under the old law (ante, p. 25), to search only in the names of the vendor and of such of his predecessors in title (except those who had not attained twenty-one on the 29th of July, 1864), as were not purchasers for value, and the search is not carried back further than the last purchase or mortgage, reliance being placed upon the probability that proper searches were then made. And a soliciter is justified in following the usual practice (see 30 SOLICITON' JOURNAL, 683) unless there are any special circumstances suggesting the expediency of a more extended search, which is far less onerous than it formerly was, since the period of search cannot in any case exceed five years.

The searches to be made are as follows:-
:-

(i.) As to judgments entered up on or before the 23rd of July, 1860 (23 & 24 Vict. c. 38).-Search for five years in the register of judgments in the Central Office.

(ii.) As to judgments entered up after the 23rd of July, 1860, and on or before the 29th of July, 1864 (23 & 24 Vict. c. 112). The like search in the register of judgments appears to be necessary, both because (see ante, p. 74) this Act does not dispense with the necessity of registering the judgment itself as well as the process of execution, and also because the register of executions is directed to be kept in the names of the creditors. It has been stated by the chief clerk of the registrar of judgments (see letter to the SOLICITORS' JOURNAL, vol. 4, p. 864) that the practice was adopted of making in the register of judgments a reference to the register of executions. (See 6 Jur. N. S., pt. 2, p. 338).

The register of executions must be searched for three months last past, immediately before completion.

By R. S. C., 1883, LXI., 22, no incumbrances can be registered after two o'clock p.m., the object being to enable a purchaser to complete after that hour in the day without the risk of registration by execution creditors.

(iii.) As to judgments entered up since the 29th of July, 1864 (27 & 28 Vict. c. 112).-These, as we have seen (ante, p. 90), do not affect purchasers until the lands have been "actually delivered in execution." The difficulty of ascertaining this fact has been already pointed out (30 SOLICITORS' JOURNAL, 683, 724, 742). The Act (section 3) directs the execution to be registered after it has been enforced, and some degree of security may be attained by searching for such registered executions; but no limit of time is imposed within which they are to be registered (see Re Pope, 34 W. R. 654, per Wills, J.).

Here it may be observed that purchasers and mortgagees should in all cases make inquiries of tenants or other persons in possesOfficial searches.-Under R. S. C., 1883, LXI., 23, the regis- sion of the lands as to the nature and terms of their holding. trar of judgments will, on a request in writing, cause a search to Judgments of Palatine Courts of Lancaster and Durham. be made and issue a certificate of the result; and by the Convey--There were formerly four of these courts-viz., the Court ancing Act, 1882, s. 2, and the rules thereunder, full provision is of Pleas and the Chancery Court of Durham, the Court of

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Common Pleas and the Chancery Court of Lancaster. the Judicature Act, 1873 (see sections 16, 77, 78, 92, 99), the jurisdictions of the Courts of Pleas of Durham and of Common Pleas of Lancaster were transferred to the High Court of Justice, and the officers of those courts were attached to the High Court. The Chancery Courts of both Durham and Lancaster still exist. The judgments or decrees of the palatine courts per se affect only lands within their respective jurisdictions, and the 1 & 2 Vict. c. 110, and the amending Acts above noticed, do not contain any provision for registration of palatine common-law judgments in the London registry. But by 1 & 2 Vict. c. 110 (s. 18, ante, p. 42), decrees and orders of "courts of equity' are to have the effect of judgments in the superior courts of common law, and a creditor is to have the same remedies upon them; provided (section 19 of the same Act, ante, p. 57) that no decree or order "in any court of equity" shall, by virtue of that Act, "affect any lands as to purchasers unless and until registered in the Common Pleas. The 4th section of 2 & 3 Vict. c. 11 (ante, p. 58), as to re-registration, also expressly applies to decrees or orders "in any court of equity," and speaks of "lands" generally; and the 5th eection of the same Act (ante, p. 58), protecting purchasers without notice, refers to "such decrees or orders," and to "any lands"; and the same observation applies to the provisions (ante, p. 58) of 3 & 4 Vict. c. 82, and 18 Vict. c. 15, protecting purchasers with notice of unregistered judgments. The terms of these enactments are so general as apparently to include decrees and orders of the Palatine Chancery Courts, and to require them to be registered and reregistered in the London registry before they can affect purchases of any lands, whether within or without the jurisdiction of these courts, and also to protect purchasers in respect of notice, or absence of notice, to the same extent as in the case of judgments of the High Court of Justice.

The Statutes, 33 Geo. 3, c. 68, s. 1, and 2 Vict. c. 16, s. 28, provided for the removal of judgments, &c., of the Court of Pleas of Durham and the Court of Common Pleas of Lancaster, but they have been repealed by the Statute Law Revision Acts, 1871 and 1879.

By 13 & 14 Vict. c. 43, s. 15, and 17 & 18 Vict. c. 82, s. 10, decrees and orders of the Court of Chancery of Lancaster may be removed into the High Court of Chancery, and then be enforced against the parties bound thereby, and all proceedings may be had thereupon as if such decrees or orders had been originally made by the High Court of Chancery. (See form of order in Seton, p. 1552.)

There does not appear to be any power to remove judgments of the Durham Chancery Court into the High Court of Justice; and we have been informed upon authority that no registry of judgments or decrees is kept at Durham since the Durham Court of Pleas was abolished.

The result seems to be that, so far as any judgments of the palatine courts can affect lands out of their jurisdictions, they must be subject to the same provisions as to registration as judgments of the High Court, and that the searches to be made are the same in

both cases.

Scotch and Irish judgments.-By the Judgments Extension Act, 1868 (31 & 32 Vict. c. 54), judgments of the Courts of Queen's Bench, Common Pleas, or Exchequer at Dublin, "for any debt, damages, or costs," and decrees of the Court of Session in Scotland, "for the payment of any debt, damages, or expenses," may be registered in the Common Pleas at Westminster in the "Register for Irish Judgments" and the "Register for Scotch Judgments respectively; and from the date of registration they are to have the same force and effect, and the same proceedings may be taken upon them, as if they had been judgments obtained or entered up in the English court (see Piggott on Foreign Judgments, 2nd ed., 358; 1 Chitty's Archb. 14th ed., 771).

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It may, therefore, in some cases (as where an owner resides, or has resided, in Scotland or Ireland) be advisable to search in these registers. By the Order as to Court Fees, 1884, a fee of one shilling is to be paid for each name on a search made in one or both of the Scotch and Irish registers.

By the Inferior Courts' Judgments Extension Act, 1882 (45 & 46 Vict. c. 31 (see Piggott, For. Judgm. 362), judgments of inferior courts in Scotland may also be registered with the like effect in the register of Scotch judgments in London; and judgments of Scotch and Irish inferior courts may be registered in

county courts and other inferior courts in England, but, as to these last, the process of execution can be issued only against "goods and chattels."

41 Geo. 3, c. 90, s. 6, enabled decrees and orders of the Irish Court of Chancery to be enforced in England, but only against the person (see Seton, 1551).

Judgments of inferior courts.-By 1 & 2 Vict. c. 110, s. 22, judgments, rules, and orders of certain inferior courts of record may be removed into the superior courts at Westminster, and shall thereupon be of the same force, charge, and effect as judgments, &c., of the superior courts, and the like proceedings may be taken upon them; and by 18 Vict. c. 15, s. 7, they are to be registered and re-registered, and then to be binding in like manner as the judgments of the superior courts (see 2 Chitty's Arch, 14th ed., 1569; 2 Dan. Ch. Pr. 1721).

Judgments, rules, and orders (for sums of £20 and upwards) of courts to which the Borough and Local Courts of Record Act, 1872 (35 & 36 Vict. c. 86), has been applied by Order in Council, can be removed (see section 2 and sched., r. 9) into the High Court, so as to have the same effect as judgments of the High Court. By Order in Council of 27th June, 1873, this Act was applied to the Tolzey Court and Pie Poudre Court of Bristol, the Courts of Record of Scarborough and Poole and the Salford Hundred Court, and some of its provisions, including that for removal of judgments, were applied to the Mayor's Court of London. The five years' search in the register of judgments will, therefore, disclose any judgments removed and registered under those Acts; and by the proviso in section 22 of 1 & 2 Vict. c. 110 (the proviso was repealed by 18 Vict. c. 15, s. 7, but restored by 38 & 39 Viet. c. 66, which repeals the repeal), such judgments, when removed, are not to affect lands as to purchasers until a writ of execution is delivered to the sheriff.

County court judgments for an amount exceeding £20 may be removed into the High Court by certiorari, and, when removed, have the effect of judgments of the superior courts: 19 & 20 Vict. c. 108, s. 49. (See Dan. Ch. Pr., vol. 2, p. 1917, 6th ed.) The county courts themselves have no process of execution by which land can be affected: Pitt - Lewis, County Court Pr., 2nd ed., 629. They have, however, under 30 & 31 Vict. c. 142, s. 11, jurisdiction in ejectment where the annual value does not exceed £20: Pitt-Lewis, County Court Pr. 736, 747. By 9 & 10 Vict. c. 95, s. 27, a registry of judgments is directed to be kept in each county court, and under 15 & 16 Vict. c. 54, s. 18, and the Treasury Instructions of June, 1878 (35), a "registry of county court judgments" has been established in London, in which judgments for £10 and upwards are to be entered. The fee for search is 6d. for each name. The County Courts Rules contain a similar provision as to judgments of the City of London Court.

Mayor's Court of London.-By 20 & 21 Vict. c. clvii. (Loc. & Pers.), s. 48, final judgments, and any rule or order, whereby any sum of money, costs, charges, or expenses shall be payable to any person, may be removed into any of the superior courts, and shall then become and be of the same force, charge, and effect as a writ of execution or judgment recovered in, or a rule or order made by, such superior court, "provided that no such judgment or rule or order when so removed shall affect any lands, tenements, or hereditaments as to purchasers, mortgagees, or creditors, any farther than the same would have done if the same had remained a judgment rule or order of the Mayor's Court, unless and until a writ of execution thereon shall be actually put into the hands of the sheriff or other officer appointed to execute the same (see 2 Chitty's Archb. 1571; 2 Dan. Ch. Pr. 1920). By 35 & 36 Vict. c. 86, s. 6, the Mayor's Court can send writs of execution on judgments and orders for sums not exceeding £20 to any county court within the jurisdiction of which the defendant has any goods or chattels for execution by the high bailiff of the county court.

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See Order in Council, June 27, 1873, No. 3028, which applies to this court the provision of rule 9 of the schedule to the Borough and Local Courts of Record Act, 1872, as to removal of judgments: Munday v. Pigott, W. N., 1884, p. 57; Paine v. Slater, 31 W. R. 941, 11 Q. B. D. 120.

Stannaries Court.-Decrees, judgments, or orders against a party to the suit for payment of money, costs of suit, charges, or expenses, may be enforced by suing out, immediately after entry of the decree, judgment or order, a writ of fi. fa. against

goods and chattels (Procedure of Stannaries Court. By Authority. I case I cannot say that the prior incumbrance would have come to the London. 1876. p. 139. Miscellaneous, Ord. II., r. 1). Where knowledge of Banks if he had gone to Cousins. Banks has not told the amount exceeds £250, and the judgment cannot be enforced ne anything about it, nor has Cousins." [The mention of Cousins within the Stannaries, execution may be enforced out of the juris-been dead several years.] "But I do know this-that Cousins has must have been by inadvertence, as, according to the report, he had diction under 18 Vict. c. 32, ss. 9, 10 (see Seton, 1552; 2 Chitty's actually executed the deed to Pepper which, on the face of it, not Archb. 1573). only does not mention the prior mortgage, but is so framed as to shew that there was no prior incumbrance; and, therefore, if Banks, not having, as I say he had not on the evidence, knowledge of the prior deed, had gone to Cousins and asked him, I ought not to infer that Cousins would have said that there was a prior incumbrance, but rather to infer that Cousins would have answered according to the statements that appear on his own deed. The executors of Pepper, therefore, have priority in respect of the £500 mortgage and further

Decrees or orders of Ecclesiastical Courts may be inrolled in the Chancery Division of the High Court, and then enforced by sequestration against real and personal estate in England (2 & 3 Will. 4, c. 93, s. 1). See Form in Seton, p. 1552.

THE DOCTRINE OF NOTICE AS AFFECTED BY THE charge of £50."
CONVEYANCING ACT, 1882.

(Re Cousins, 34 W. R. 393, 31 Ch. D. 671.)
WITHOUT questioning the decision in this case, the reasoning by
which it was arrived at appears to us open to comment.
The case was this:-M. Cousins, being entitled under the will of
W. Cousins to a share in the proceeds of real and personal estate, by
deed of the 21st of August, 1871, mortgaged that share to Banks,
his solicitor, to secure £35. M. Cousins again, by deed of the 8th
of December, 1873, mortgaged his share to Richardson to secure
£150. Banks was paid off out of the £150; was a party to the deed,
and acted professionally for all parties. By deed of the 29th of
July, 1874, Richardson transferred his mortgage to Drake, Banks
acting as solicitor for both parties. It may be assumed, as it was so
held, that no notice of any of the above-mentioned deeds was given
to the trustees of W. Cousins' will. By deed of the 18th of June,
1875, M. Cousins mortgaged his share to Pepper to secure £500, and
by deed of the 5th of May, 1877, made a further charge to secure
£50. No mention of the previous charge of £150 was made in
either of these deeds, and there was the usual covenant that Cousins
had good right to assign free from incumbrances. Banks acted as soli-
citor for both parties in both these transactions. Pepper died in
1878, and M. Cousins in March, 1881. On the 1st of November,
1881, notice in writing of the mortgage and further charge in favour
of Pepper was given by his executors to the surviving trustee of W.
Cousins' will. The share of M. Cousins having been paid into court
under the Trustee Relief Act, and being insufficient to satisfy the
securities of Drake and Pepper, the question to be decided was as to
their priorities.

The fact of notice of Pepper's mortgage having been given to the surviving trustee of the will of W. Cousins, while no notice had been given of the earlier mortgage, was, of course, sufficient to determine the priority in favour of Pepper's security, supposing he was not affected with notice of the earlier mortgage. It was clear that Pepper himself knew nothing about the earlier mortgage. The question, therefore, came to be, Was Pepper otherwise affected with notice? This, owing to the position Banks had occupied with reference to all the transactions, must have been decided against Pepper on the authority of Hargreaves v. Rothwell (1 Keen, 154) but for the recent enactment in section 3 of the Conveyancing Act, 1882. The enactment is as

It is this latter part of the reasoning that appears to us questionable, bearing in mind sub-section (3), above set out, preventing any extension by that section of the doctrine relating to purchasers being affected by notice. It is obvious that, in the consideration of paragraph (ii.) of sub-section (1), the question first to be considered was, What inquiries ought reasonably to have been made by the solicitor? Now in Dearle v. Hall (affirmed by Lord Lyndhurst, C.) (3 Russ. 1), the leading case on this subject, the point as to the necessity in such a case as the present of making any inquiry of the vendor (of course a mortgagor is in the same position) as to incumbrances by him was dealt with. Sir Thos. Plumer, M.R., there said (at p. 19):—“ With respect to the circumstance that the question was not put directly to Brown, he covenants in the deed of assignment that the fund was free from incumbrances; and, consequently, the necessity of making inquiries of him was superseded." If Mr. Justice Chitty had held, as we submit he should have done, on the authority of Dearle v. Hall, that there was no necessity for any inquiry of Cousins, he would have saved himself the difficulty of determining whether or not, if such inquiry had been made, the prior incumbrance would have come to the knowledge of Pepper's solicitor, or, we suppose, of Pepper himself.

The difficulty seems insuperable of determining satisfactorily what the result of an inquiry not made would have been where this result depended upon the truthfulness of a person whose interest it was to conceal the truth. Some remarks of Sir J. Romilly, M.R., which appear appropriate to this point, occur in 24 Beav., at p. 62, where he says:-"With respect to the argument that it was unnecessary to make any inquiry because it would have led to no result, I think it impossible to admit the validity of this excuse. . I think it impossible beforehand to come to the conclusion that a false answer would have heen given. A more dangerous doctrine could not be laid down, nor one involving a more unsatisfactory inquiry-viz., a hypothetical inquiry as to what A. would have said if B. had said something other than what he did say.

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REVIEWS.

JOINT STOCK COMPANIES.

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follows, omitting sub-section (2), which is immaterial for the present A TREATISE ON THE LAW AND PRACTICE RELATING TO JOINT STOCK purpose, and the last sub-section, which applies the section to past transactions where no action is pending:

Sub-section (1). A purchaser [which, under section 1, includes a mortgagee] shall not be prejudicially affected by notice of any instrument, fact, or thing unless--

(i.) It is within his own knowledge, or would have come to his knowledge if such inquiries and inspections had been made as ought reasonably to have been made by him; or

(ii.) In the same transaction with respect to which a question of notice to the purchaser arises, it has come to the knowledge of his counsel, as such, or of his solicitor, or other agent, as such, or would have come to the knowledge of his solicitor, or other agent, as such, if such inquiries and inspections had been made as ought reasonably to have been made by the solicitor or other agent.

Sub-section (3). A purchaser shall not by reason of anything in this section be affected by notice in any case where he would not have been so affected if this section had not been enacted.

Mr. Justice Chitty held that the above section put an end to the doctrine of Hargreaves v. Rothwell, and that the transactions in which Banks had been concerned before the mortgage to Pepper did not, within the meaning of that section, come to the knowledge of Banks as Pepper's solicitor. The learned judge then proceeded to discuss the difficulty supposed to be caused by the words, "or would have come to the knowledge of his solicitor, as such, if such inquiries had been made as ought reasonably to have been made by the solicitor," and he is reported to have said: "Then it is said that it would have come to the knowledge of Banks, the solicitor for Pepper, as such solicitor, if he had made the inquiries and inspections which he ought to have made," and, after saying something about the title that ought to have been required to be shewn, he says:-" In this

COMPANIES UNDER THE ACTS OF 1862-1883, WITH FORMS AND
PRECEDENTS. BY C. E H. CHADWYCK HEALEY, assisted by PERCY
F. WHEELER and CHARLES E. E. JENKINS, Barristers-at-Law.
SECOND AND ENLARGED EDITION. W. Maxwell & Son.

This book, although called a second edition of Mr. Healey's book on Articles of Association, is to a large extent a new contribution to merely with the formation and management of joint stock companies, the literature of company law. In its altered form it deals, not but embraces also the whole of the law relating to winding up; and, were it not that the requirements of all classes have already been so fully supplied by excellent works on the same subject, we should anticipate for the new comer a very considerable success. This it in any case deserves; for it is admirably written, and no labour has been spared in making it as complete as possible. The cases have been brought down to the latest possible date; multiple references to the various reports are supplied in the table of cases, and the index is very good. The arrangement of the matter strikes us as somewhat peculiar We have, first "the treatise" par excellence, which represents the original work, and consists of four chapters only; then follow forms and precedents under a great variety of headings, with notes appended, and, lastly, the Acts and General Orders in 100 pages of small type. The statutory forms, we may observe, are not printed as a schedule to the General Order, but are scattered through the body of the work, being distinguished by an asterisk from the author's forms.

We have found very little to find fault with in our perusal of these pages, and such blemishes as we have noticed are not of the first importance. Take, for example, the following statement in which the

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