Page images
PDF
[graphic]
[graphic]
[graphic]
[ocr errors]
[graphic]
[merged small][graphic]

ac; CURRENT TOPICS.

iipiiuvi Asrnii THE nrsnva of the courts on the 21st inst., all the oflices olicies. llli of the Supreme Court will be closed from and including Friday, aggm the 24th inst., to and including Monday, the 27th inst.

rlllflilllii

lather! s Tim ARRANGEMENTS fo_r the judge's _ chamber work _ of M_r. luifi-‘H-Y; Justice Kn and Mr. Justice Srmnmo during the next sittings will ““"’9“‘* be as follows :--11 r. Justice I{_ir will sit in chambers on Tuesday ____ and Friday afternoons, and Mr. Justice Sruimxo (sitting in court) UBNE will take chamber work every Friday.

[graphic]
[ocr errors]
[graphic]

~'f (anlc, p. 78) that notice of election to charge on the old system, ‘3_3Tw-\' given in writing to the lessor, was a sufiicient notice under the E“ clause. And in June, 1884, the Council of the Incorporated Law we Society held (see Digest, p. 17) that “a lessor’s solicitor may and ,,,,.,-.-, should, where he desires to elec‘. under Schedule II., underclause '3 6 of the Remuneration Order, give riofice Io H18 lessor as I/1e client '.'/ under the rule; and a lessee entering into a contract for a lease lll’Al'l~ must be assumed to know this, and should inquire or stipulate if mm, he wishes to avoid paying under Schedule II.” We also came to the

[ocr errors]
[ocr errors]

The Solicitors’ Journal and Reporter

Wi: 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

conclusion that this is the proper construction of the Remuneration M, 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 Siriniiow, 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 lcssor’s solicitor to the lessor upon his being first instructed by the lessor, but was not brought to the knowledge of tho 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" Vlew; 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 ll1&t_“iiotice to the lessor without notice to the lessee” is not suflicient. Will notice to the lessee without notice to the lessor be ‘mi Wfliolcnt; or must notice be given both to the lessor and to the 195599? There is certainly some foundation for this view in the definition of “client ” in theRemuneration Act, which may be read as ,

statutes, borough constables, county constables, City of London constables, and metropolitan constables, each having a separate statute applying tq them, éarying liiliglqtly, but nott sbqbslgiqtiallyd in terms. In Dou on v. arris t e c aiming cons a e e onge to the Metropolitan Police Force, and the revising barrister struck him off on the authority of the Metropolitan Police Act of 1829 (10 Geo. 4, c. 44), s. 18. By this enactment, “no person belonging to the police force shall, during the time that he shall continue in any such otfice, or within six calendarmonths after_ he shall have quitted the same, be capable of giving” the Parhamentary vote. It was held in Hm;/ward v. Scott (28 W. 98§), 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 expungc 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 183?, which applies to paupcrs, it will be seen that it imposes a disqualification only, not an incapacity, so that the cases are clearly distinguishable; and, indeed, the Word “incapacity” m 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 docs 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.

W1-: nave RECEIVED a copy of a correspondence _ which has recently passed between an eminent firm Of S0110lt°I8 and B 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 arefresher fee of twenty-five guiueas. The solicitors, who were acting as London agents for_ a 00111135’ firm, referred to their clicnts,_who repudiated their liability to pay more than ten guineas (the highest refresher fee allowed on tanation under R. s. 0., 1sss,_Lxv., av (48)). bl1tXPl@@d their willingness to pay fifteen guineas. This fee was declined. ’lhe solicitors do not question the right of thelearned counsel or his cleri to stipulate beforehand the amount_of f_ees and refreshers, l_)ut]_t ey contend that, unless this stipulation is made, they and tl1Eltf068l'ltS are entitled to assume that the fee named in the llulespo b our; would be accepted; and they p0int_out that the Cllefilli bis oun to pay that fee only, unless a bargain to pay more psb High P1'€_i viously made.” They do not refer to the resolution 0 t eI ounci of the Incorporated Law Society in 1883 (28 sOI.l(“I‘TOIlS OUREAL, 167) recommending, with reference to refreshers, _ thap lldtégltli etrs of the society should _insis_t on these fees beiqlg imi I lo those allowed on tairation in all cases_ in vvhiq counse mp their clerks do not intimate to the solicitor lpe ore_1i;c<1;e1>exg_ the brief that a larger, and If 90 Whit» ?e “fl _ .

[graphic]
[ocr errors]
[graphic]
[graphic]
[ocr errors]

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 i1npZied,” 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 difllculty. 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.

[graphic]

Tunas WILL nii rouun 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. \Ve 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—Cornivall. We are surprised to hear that the practice even of a contract fee to the

vendor’s solicitor still lingers in some ports of England; it ought to be abandoned everywhere.

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

REGISTRY WITH GUARANTEED TITLE

THERE is a marked difference between registration with inzlqfleaeible title and registration with yuamntecd title; the former, adopted in England by Lord \Vestbury’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 gu/iranteed 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 oificial 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 indefensible 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 0., an innocent purchaser. C. is registered with an indefeasible title, A. can have no remedy against (J., 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 recompcnsed by the State or the oflicial 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 Laud," 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—(l) 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 difliculty 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 titlesin England exist also to Australia, and there is no difiiculty 111 registermg titles in that country, it is clear that we must seek some other reasons for the different result in the two countriesMr. Brickdale shews conclusively that the reason for the difference is that here we have tried registration with 1'nde/eaaible title, there they have tried registration with gunrariteed title.

The practical working of the two systems is very differentUnder the registry with an iiidefcasible title the investigation must be of the strictest possible character, thus giving rise to expenifi and delay. Under registration with a guaranteed title, where the mlschief d°n9 bl’ accepting a bad title is not irremcdiablc, the titlfl need only_ be investigated in the manner in which it is investigfltel P!’ an Oldlnary purchaser. In fact Mr. Brickdale assures us that In Australia the registrar accepts titles rather more easily than all ordinary purchaser does. He says that, in twenty years’ experience °f the SY “@111 in South Australia, only two instances have occurred Qt thegutbeing filtered by the court, in both of which cases

I u - - . _ ,,,,,§;n::;snsisizisizr £?..‘?i2€Z.”3;°££2.Z“‘“t§.3§f$

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

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 (Ill calorcm 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 oifice; that the investigation should be made, as at present, by a solicitor ; and that ofiiciul investigation should only be made in cases where he hesitates to say that the titlc 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 ovan 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 ra_q1'slared title is good, but that the lns! precealin_q 1'e_qislernl fiflc is good ; in this case u purchaser has just the same motive to cmploy 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 ofiicial 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 propcrty.

_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, o. process which is constlmtly 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 i advocates will work well in this country.

CONCERNING SEARCHES. (XVII.) JUDGMENTS. II. Tun Mourns Lsw or Jnimnzsrs (continued).

Tlw searches to be made for ju1Iyments_—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 fcc simple, and to consider the searches to be made having regard to the local situation of the Pr°P°"t)"'_—i.e. (a.), generally, and (b.) when it is within the registry counties or the jurisdiction of either of the Palatine Counties 0i Lancaster and Durham.

Grneral rules : where the property is not affected by the R<>s1~try_ Acts for llliddlesex and Yorkshire, and is not within the palatine jurisdictions.

P /1108 of se_arch.—The Department of Judgments in the Central gfilce (established by the Supreme Court of Judicature (Ofiicers) 4) at the Royal Courts of Justice (see R. S. C.,

[ocr errors]
[graphic]

made for oflicial 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 sufilcient 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 clays 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 reqistry of _judgment.r.—-The effect of 2 & 3 Vict. c. 11 is to make five years sufficient in all cases (see arm.-, p. ss).

Against whom to sears-l|.—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 parle Zfynle, 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 bo 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 (anla, 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 _t-he probability that proper searches were then made. And a solicitor is justified in following the usual practice (see 30 Soi.wi'roi|v' JOYRXAL, 683) unless there are any special circumstances_ suggesting the cxpediency of a more extended search, which is far lcss 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 _;'u1l_r/menls elzlcrerlup on or liq/bre I/za 23rd of July, 1860 (23 24 l'i'cl. c. 38).—Scarch for five years in the register 01 judgments in the Central Oflicc.

(ii.) As lo jurlyiiiezifs entered up afler Ilie 23rd qf July, 1860, and on or be;/orc the 29th of July, 1864 (23 §" 24 Vicl. 0. 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 chicf clerk of the registrar of judgments (see letter to the SoLIciro11s’.Touniv.iL, 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,

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

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

(iii.) A0 to juelqments enferell up since tlia 29th of July, 1864 (27 28 Vict. 0. 112).—These, as we have seen (mile, p. 9_0), do not afieot purchasers until the lands have been “ actually delivered in execution.” The difllculty of ascertaining this fact has been already pointed out (30 Souciroiis’ _Jovs.iuL, 683, 724, 742). The Act (section 3) directs the execution to be registered _after it has been enforced, and some degree o_f security may _l)6'Btt8.ll1.8(l by searching for such registered executions ;_but no limit of time is imposed within which they are to be registered (see Re Pope, 34 ‘V. R. 654, per \Vills, .T.).

Here it may be observed that purchasers and mortgsgees should in all cases make inquiries of tenants or other p_ersons_in possession of the lands as to the nature and terms of their holding.

Jud_r/meats of Palatine Cburls of Lancaster _and Duglmmé —There were formerly four of these courts—v1z., tho? réiuff of Pleas and the Chancery Court of Durham, the 011 °

[graphic]

anmg AW 1331!, 5- 2, and the rules thereunder, full provision is

[ocr errors]
[graphic]
[ocr errors]

Common Pleas and the Chancery Court of Lancaster. By 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 ofiicers 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 sa afiect 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 eflect of udgments 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, “ afiect 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 section 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 Yict. 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 udgments, &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 8:14 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 (1;-i2I§igh Court of Chancery. (See form of order in Seton, p.

O

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 pa.latin_e courts can afiect lands out of their urisdictions, they must be subject to the same provisions as to registration as udgments of the High Court, and that the searches to be made are the same in both cases.

Scotch and Irish udgmants.-—By the Judgments Extension Act, 1868 (31 & 32 \'ict. 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 J udgments" and the “Register for Scotch Judgments " respectively; and from the date of registration they are to have the same £orce_and efiect, and the same proceedings may be taken upon them, as if they had been judgments obtained or entered up in the Enghsh court (see Piggott on Foreign Judgments 2nd ed, ass; 1Chitty’s Archb. 14th ed., 771). ' ’

It may, therefore, in some cases (as whore an owner resides or hasresided, in Scotland or Ireland) be advisable to search in these registsrs. the Olider as to Court Fees, 1884, afee of one shilling 15 o e ai or eac name on a search ma '

Scotch agd Irish registers. de In one or both of the By the Inferior Courts’ Jud ments E ' 46 Vict. c. 31 (see Piggott,gFor. Judgilihgctjifsietii 5% inferior courts in Scotland may also be registered witg the mu, effect in the register of Scotch judgments in London; and judg_ ments of Scotch and Irish inferior courts may be registered in

[graphic]
[graphic]

I

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 (sec 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 (3-5 & 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 Poudrc Court of Bristol, the Courts of Record of Scarborough and Poole and the Salford Hundrcd 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, thereforc, 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 Vict. c. 66, which repeals the repeal), such judgments, when removed, are not to aflect lands as to purchasers until a writ of execution is delivered to the sheriff.

County court juitqmoiils for an amount cxceeding £20 may be removed into the High Court by certiorari, and, when removed, have the efiect 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 proccss of execution by which land can be atfcctcd: Pitt-Lewis, County Court Pr., 2nd ed., 629. They have, however, under 30 & 31 Yict. c. 142, s11, 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 8: 16 Vict. c. 54. B18, and the Treasury Instructions of June, 1878 (35), a “registfy 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 éontain a similar provision as to judgments of the City of London

ourt.

Mai/o1’s Court of Lomlon.—By 20 & 21 Yict. c. clvii. (Loc. 8: 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 udgment or rule 01‘ order when so removed shall affect any lands, tenements, or hereditamcnts 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 oi execution thereon shall be actually put into the hands of the sheriff or other oificer appointed to execute the same” (B99 2 Cl_1itty’s A1-chb. 1571 ; 2 Dan. Ch. Pr. 1920). By as & 36 V10_t- 0- 86, s. 6, the Mayor’s Court can send writs oi execution 011 Judgments and orders for sums not exceeding £20 to any count? court within the jurisdiction of which the defendant has any g°°d5 or chattels for execution by the high bailifl? of the county court.

Sec 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: Muizday v. Piyott, W. N., 1884, p. 57; Paine v. Slater. 3| W. R. 941, ll Q. B. 1). 120.

Slannarics 0ourt.—Decrees, judgments, or orders against a party to the suit for payment of money, costs of suit, charges, .°r “P995991 ma-Y be enforced by suing out, immediately after entry of the decree, judgment or order, a writ of fi- ffl- B8“i5t

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

goods and chattels (Procedure of Stannaries Court. By Authority. London. 1876. p. 139. Miscellaneous, Ord. II., r. 1). Where the amount exceeds £250, and the judgment cannot be enforced within the Stannaries, execution may he enforced out of the jurisdiction under 18 Vict. c. 32, ss. 9, 10 (see Seton, 1552; 2 Chitty’s Archb. 1573).

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.

[ocr errors]

THE DOCTRINE OF NOTICE AS AFFECTED BY THE
CONVEYANCING ACT, 188:.

[ocr errors]

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. Cousms 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 Sth of l)eceniber, 1873, mortgaged his share to Richardson to secure £100. 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, _R_ichardson 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, 18m, M. Cousins mortgaged his share to Pepper to secure £500, and by deed of the 5_th of May, 1877, made a further charge to secure £:.i0. 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 _/‘roe from incumbrances. Banks acted as solicitpr for both parties in both these transactions. Pepper died in 1&3. and Cousins in March, 1SSl. On the lst of November, 1331. !10il¢8 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,

_ 'l_‘hs fact of notice of Pepper’s mortgage having been given to the surVlving trustee of the will of W. Cousins, while no notice had been given 0f_th_e earherinortgage, was, of course, sufficient to determine the Pljlflflfy in favour 0 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, theref°l‘?. came to be. Was Pepper otherwise affected with notice F This, Owlligto the position Banks had occupied with reference to all the transactions, must have been decided against Pepper on the authority Pf Hargreaves v. Ifotliwell (1 Keen, 154) but for the recent enactment ui section o_f the Conveyancing Act, 1882. The enactment is as f°u°W5» omitting sub-section (2), which is immaterial for the present P11PP08B._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 ;"°"8°89B_] shall not be prejudicially affected by notice of any instrument,

"F. 01' thing unless--A leg!-l Ift is within own knowledge, or would have come to his knowto go i such inquiries and inspections had been made as ought reasonably

__ave been made by him ; or to In the sametransaction with respect to which a question of notice ‘ache P"l'!¢l1B_8ei' arises, it has come to the knowledge of his counsel, as the EH0“; dhis solicitor, ,or other agent, as such, or would have conie_to and bu?“ 9 _8e of his sohcitor, or other agent, as such, if such niquiries Peqtions had been made as ought reasonably to have been made

ll? the sohcitor or other agent. BecS,,?,:;5efi°n (3)- A purchaser shall not by reason of anything in this so affected iléifected by notice in any case w ere he would not have been

Mr _ this section had not been enacted.

trim - gustica Chitty held that the above section put an end to the dochad fie Hargreaves v. Rothwell, and that the transactions in which Banks the 6li_ concerned before the mortgage to Pepper did not, within Pa me,"-111l1§_ of that section, come to the knowledge of Banks as diflliltlzgts so icitor. The learned judge then proceeded to discuss the to the ky Supposed to be caused by the words, “ or would have come made "OW edge of his sohcitor, as such, if such inquiries had been he is "5 °“8l1t reasonably have been made by the solicitor,” and have reported to have said:—-“Then it is said that it would such s?3ilI1_9 t0'the knowledge of Banks, the solicitor for Pepper, as Du ht toclfiori If he had made the inquiries and inspections which he tbs, 5'9 made. Bud. after saying something about the title

[graphic]

l case I caimot say that the prior incumbrance would have come to the knowledge of Banks if he had gone to Cousins. Banks has not told nie anything about it, nor has Cousins." [The mention of Cousins must have been by inadvertenee, as, according to the report, he had been dead several years] “But I do know this—tliat Cousins has actually executed the deed to Pepper which, on the face of it, not only does not mention the prior mortgage, but is so framed. as to shew that there was no prior incuinbrance; 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 charge of £50.”

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. Hull (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 incunibrances; 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 Dearlc v. Hall, that tliere was no necessity for any inquiry of Cousins, he would have saved himself the diificulty 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 difliculty seems insuperable of determining satisfactorily what the result of an inquiry not made would have been where this result depended upon the truthfulness oi 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. G2, 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 hecn 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 Slld if B. had said something other than what he did say.

[graphic][merged small]

A Tum-risn ON THE Law .-inn PRACTICE RELATING T0 J oixr STOCK
COMPANIES nnnaa THE Acrs or 1862-1883, wirii Foniis AND
PRECEDENTS. BY O. E H. CIIADWYCK Hi-:.iLi:Y, assisted by PERCY
F. Wnnnnsii and CHARLES E. E. JENKINS, Barristers-at-Law.
Sncon) AND ENLARGED EDITION. W. Maxwell 8: 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 the literature of company law. In its altere_d_ form it deals, not merely with the formation and management of Joint stock companies, 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 sub]ect, 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 broight down to the latest ossible date; multiple references to_the VIIHOLB 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 €.rCcilrncr, which represents tl;o oi-i ' a1 work, and consists of four chapters only; then follow forms and-Lgrecedents under a great variety of headings, _with notes appended, and, lastly, the Acts and General Orders m 100 pages cg small type. The statutory forms, we may observe, are not ]_)i'1l!J/E as a schedule to the General Order, but are scattered througth _8 body of the work, being distinguished by an asterisk from the au or s forms. _ _

We have found very little to find fault_ with in our pqrufifllgf $712? a es, and such blemishes as we have noticed are not o t e rs 1

[graphic]

Wight to have been required to be shown, he says :—“ In this

[ocr errors]

P 8 . - portance. Take, for example, the following statement m which the

« PreviousContinue »