Page images
PDF
EPUB

ESTABLISHED 1869.

THE

ACADEMY,

A Weekly Review of Literature, Science, and Art.

PRICE THREEPENCE: FREE BY POST THREEPENCE-HALFPENNY.

ANNUAL SUBSCRIPTION, 13 s.; BY POST, 15s. 20.

PAYABLE IN ADVANCE.

PUBLISHED EVERY FRIDAY IN TIME FOR THAT DAY'S POST.

CONTAINING EVERY WEEK

SIGNED REVIEWS of important new books, English and Foreign, in Belles-Lettres, Travel, History, Biography, Philosophy, Natural Science, Philology, the Fine Arts, and Archaeology. PERIODICAL NEWS-LETTERS from Oxford,

Cambridge, Paris, Rome, Florence, Berlin, and other Centres of Learning and Literary Activity.

Obituaries of Distinguished Men. Transactions of Learned Societies. Correspondence.

Notes and News, Literary, Geographical, Scientific, and Artistic. Jottings respecting rare Books, Sales, and Curiosities. Publishers' Announcements, &c.

Notices of Exhibitions in London and the Provinces, and of important Novelties in Music and the Drama. ORIGINAL ARTICLES on Current Topics of Literary Interest.

THE ACADEMY has always maintained the principle of Signed Articles as affording the best guarantee of fairness and competence. In the list of its Contributors will be found the recognized Authorities in their several departments of Knowledge. The half-yearly Volumes are of permanent value for purposes of Reference, especially to those interested in the English Classics, in History, Philology, and Oriental Studies.

A New Volume commenced on January 1, 1887.

PUBLISHING OFFICE:

27, CHANCERY LANE, W.C.

To be had at all Railway Stations, and of all Newsvendors in Town and Country.

A SPECIMEN

NUMBER

Sent to any part of the United Kingdom on receipt of Threepence-Halfpenny in postage stamps.

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

SPECIAL ARRANGEMENTS FOR A SERIES.

Advertisements should be sent to the Publisher, H. Villers, at the Office, 27, Chancery-lane, W.C., on or before the Wednesday previous to the Saturday on which they are intended to appear.

"THE ACADEMY" is a desirable medium for all Advertisements addressed to the educated classes.

CASES REPORTED THIS WEEK.

184

In the Weekly Reporter.
Cubbon, In the Goods of ......... 200
Harrison, In re, Parry v. Harrison 196
Hulkes, In re, Powell v. Hulkes 194

Elwes v. Briggs Gas Co.

In the Solicitors' Journal. Allen, Re.....

185

Eden v. The Weardale Iron and
Coal Co..
183
Flint Coal & Cannel Co. (Lim.), Re 183
Gaulard & Gibbs' Patent, Re
Mayor, &c., of London, Ex parte,
Re The Metropolitan and District
Railways Act, 1879
Riddell v. The Earl of Strathmore 183
Reichel v. The Bishop of Oxford....
Sykes (Deceased), Re
Thompson, In the Goods of........ 184

186

184

Shaw v. Smith

....

185

Stanford v. Stanford

Justices of Lancaster v. Newton-
in-Makerfield Improvemert Com-
missioners
Kewney v. Attrill

....

Phillips v. Goff.

Swindell v. Bulkeley..

[ocr errors]

192

185

191 ...... 197 ..... 188

Taylor, In re, Cloak v. Hammond..

it was further held that no mandamus lay to benchers to admit a person to the status of student with the view of being eventually called, and this although it was admitted that the judges to whom the candidate had unsuccessfully applied had no jurisdiction to review the decision of the benchers, which might be, and had, in the particular case, been given without any reason assigned. In 1834 the benchers of the Inner Temple refused to call Mr. DANIEL WHITTLE HARVEY an attorney. Mr. HARVEY, who sat in the House of Commons as member for Colchester, which con16stituency returned him six times, brought his grievances 189 before the House of Commons, and a Select Committee of that 186 House exonerated him from the charge of professional malpractice brought against him before the benchers, but that august body refused to rescind its decision. Mr. HARVEY gave evidence before CAMPBELL had announced his intention of introducing a Bill to curtail the powers of the benchers; and it also appears that the Common Law Commissioners reported, in 1834, that "though the probity of the persons who fill the benches of the different societies is well known, and although the number of rejected candidates has been extremely small, yet a power, in the right use of which society is so deeply interested, ought not to be left without control in the hands of persons whose functions are not of a public and responsible kind." The right of appeal to the judges is, we think, amply sufficient to prevent abuse.

The Solicitors' Journal and Reporter. the Inns of Court Commission in 1855, and stated that Lord

LONDON, JANUARY 15, 1887.

CURRENT TOPICS.

IN ANOTHER COLUMN there will be found a notice issued by the Incorporated Law Society containing a list of the subjects to be taken up in the year 1888 for the final examination of articled clerks before admission. The effect of this notice is to produce some, but not very material change. According to the existing arrangements three of the six subjects given are essential to be taken up to give a pass-they embrace real property, common law, and equity. Under the new arrangement the examination is divided into the four several heads enumerated in the notice, and it is, no doubt, intended that candidates should offer themselves for examination in all the prescribed heads, and their answers, generally, will, of course, be considered in determining whether they are entitled to pass.

WE REPORT elsewhere several decisions on the Remuneration Order. In one the Court of Appeal affirmed the decision of Mr. Justice KAY, in Re Allen (ante, p. 78), with regard to the time at which a lessor's solicitor may elect, under clause 6 of the order, that his remuneration shall be "according to the present This will plainly give an advantage to system as altered by schedule II." In discussing that decision those candidates who have had special acquaintance with some of (ante, p. 71) we did not dispute that it might be correct on the the subjects mentioned in those heads of examination which, under facts of the particular case, but we ventured to question the the old system, were not essential, and were not, therefore, in the general rule laid down by the learned judge that, "after a solicitor majority of cases, of any assistance to them. had accepted any employment, and had done anything therein for which he could make a charge supposing the scale did not apply, it was too late for him to elect to charge according to the system existing before the General Order came into operation." This rule was not in terms adopted by the Court of Appeal, who laid down a principle much more reasonable in appearance-namely, that the "business was "undertaken" by the solicitor "as soon as the client retained him and he accepted the retainer"; and there are expressions in Lord Justice COTTON's judgment which might shew that he meant that the retainer must be "to attend to the matter and to undertake the preparation of the lease." But all the judgments indicate that the court adhere to the strict construction of "business" adopted in Re Field (33 W. R. 504) and Re Emanuel and Simmonds (34 W. R. 613), and hold that there can be no division of the preliminary business "connected with " the lease which is included in the scale fee; and, if this view is to be adopted, there seems to be little practical difference between the rule laid down by the Court of Appeal and that laid down by Mr. Justice KAY.

MR. MACNAGHTEN, Q.C., has been made a Lord of Appeal in Ordinary, and we believe the general impression will be that, failing the eminent judge to whom, if rumour is correct, the appointment was first offered, few better selections could have been made. The qualification for the office is fixed by section 6 of the Appellate Jurisdiction Act, 1876 (39 & 40 Vict. c. 59), by which it is enacted that a person shall not be appointed unless he has been the holder for not less than two years [this period was evidently inserted to prevent a repetition of the COLLIER scandal] of some high judicial office, or has been for fifteen years a practising barrister. The term of fifteen years is the same as that fixed for the extinguished offices of Vice-Chancellor by 53 Geo. 3, c. 24, and 5 Vict. c. 5, s. 19, and of Lord Justice of Appeal by 14 & 15 Vict. c. 83, and exceeds by five years the term fixed as a qualification for a judge of the High Court by section 8 of the Judicature Act, 1873. Mr. MACNAGHTEN will be entitled to sit and vote in the House of Lords so long as he holds the office of Lord of Appeal in Ordinary, and no longer, and his dignity of a Lord of Parliament will not descend to his heirs.

THE JUDGES have affirmed the decision of the benchers of the Middle Temple refusing to call a gentleman to the bar. We understand that another case of a similar nature will shortly come to be heard, and there is no doubt that in the long course of time which has elapsed since the benchers of the several inns have had the jurisdiction to call vested in them, very many more cases have occurred than the solitary one which we have been able to find in the books. This is Reg. v. Gray's-inn (1 Doug. 354), in which Lord MANSFIELD, after consulting the other judges, laid down the rule that no mandamus would be granted to an inn of court to admit one of their members to the degree of barrister, and that the only remedy of a person whom benchers refused to call was to appeal to the judges in the exercise of their "visitatorial jurisdiction." In R. v. Benchers of Lincoln's-inn (4 B. & C. 855)

ANOTHER CASE relates to the scale fee "for conducting a sale of property by public auction." Our readers will remember the discussion to which the case of Re Wilson (29 SOLICITORS' JOURNAL, 438, 29 Ch. D. 790) gave rise. In that case the taxing master disallowed the "conducting fee" to a solicitor, on the ground that, as an auctioneer and surveyor had been employed, the solicitor had not "conducted the sale," and the Court of Appeal affirmed the disallowance, on the ground that "the account of the surveyor's charges showed that many of the things for which he had charged ought to have been done by the person who conducted the sale. Consequently, the solicitor had not conducted the sale, and could not charge for having done so, the surveyor having done much of what he should have done." In that case a fee of five guineas was paid to the auctioneer for his services in the auction-room, and the court said that it might be that the fact of a fee being paid to the auctioneer would not disentitle the solicitor to the "conducting fee," but that it was not necessary to decide that question. In Re Sykes, deceased, which we report elsewhere, the facts appear

to have been that, on a sale under the order of the court, the solicitor having the conduct of the sale obtained in chambers an allowance of £23 12s. 6d. for "auctioneer's fees." According to the north-country practice, all the arrangements and work pre liminary to the sale were made and done by the solicitor, and the auctioneer was employed only to offer the lots in the auction-room. The taxing master disallowed the "conducting fee" to the solicitor, on the ground that commission had been paid by the client to an auctioneer under rule 11 of schedule I., part I., and Mr. Justice CHITTY affirmed this disallowance. It seems probable that the £23 12s. 6d. was commission, and not an agreed fee to the auctioneer; and, if so, there is nothing very novel in the decision. The express words of rule 11 appear to cover the case where the solicitor does the preliminary work and the auctioneer gets the commission from the client. If, on the other hand, the £23 12s. 6d. was an agreed fee, the case seems to shew that, in order to obtain the conducting fee," the solicitor must not only do the preliminary work, but also himself pay the auctioneer's agreed fee, and it appears that in the case of a sale under the court he is not allowed to do this.

66

THE CASE of Rodocanachi v. Milburn (18 Q. B. D. 67) decides a somewhat important point with regard to the measure of damages. The action was for non-delivery of cargo under a charter-party. The plaintiffs had sold the cargo "to arrive" at a price less than the market value of the goods at the port of discharge at the time when the cargo should have arrived. The Court of Appeal have held that, in estimating the damages for non-delivery, the market value must be looked to, not the price at which the plaintiffs had sold the cargo. We must confess to having felt some little difficulty about the point. It will be observed that the result of this decision is that a plaintiff may absolutely be a gainer by the breach of contract. The ground on which the court acted seems to have been that, in estimating the damages in such a case, a general test applicable to all cases ought to be taken without regard to circumstances peculiar to the parties; and they relied, in support of that view, on the admitted fact that, if the plaintiffs had sold the goods "to arrive" at a higher price than the market value, nevertheless they could not have recovered more than the market value. We feel some doubt whether this last consideration has any bearing on the case. The impossibility of recovering the excess over the market value in this case depends on the doctrine of remoteness of damage. That doctrine often prevents a plaintiff from recovering the full amount of the loss he has actually sustained; but here the question is whether he can recover more than the full amount. According to that doctrine a plaintiff cannot enhance his damages by reference to circumstances peculiar to himself; but the essential nature of the doctrine seems to us to be that it imposes a limitation on damages. We do not see that considerations arising from that doctrine have any application when the proposition is that the plaintiff can recover more than the amount of the actual loss he has sustained. We cannot, therefore, think this consideration so conclusive as the Court of Appeal seem to have thought it. If their decision is right, it seems to us that it must depend on the view that it is more convenient, on the whole, that a rough general rule should be applied in all cases than that greater nicety should be sought after by admitting into consideration collateral matters peculiar to the particular case, thereby possibly involving issues quite foreign to the main questions in the action, and of which no notice would be given by the pleadings. This decision is obviously a deviation from the general doctrine, which is that a plaintiff is to be put into the same position as if the contract had been fulfilled. Such a deviation requires, of course, a reason for existence. We do not think that cases depending on the doctrine of remoteness of damage can afford such a reason, for that doctrine seems to us to be a doctrine the scope of which is the protection of defendants from undue liability. If such a reason can be found, it seems to us that it must be found elsewhere; and we think it may perhaps be found in the direction we have suggested-viz., by considering the practical inconvenience which would arise if a tribunal were to be obliged to take cognizance of circumstances peculiar to the plaintiff instead of applying one universally applicable general rule. For instance, if a defendant proved that the plaintiff had sold the

goods" to arrive" at a price less than the market value, could the plaintiff reply by proving that the person to whom he had sold had, by breach of some condition of the contract of sale, incapacitated him from insisting on delivery, and therefore he was free to sell at the market value? If so, it might happen that, in addition to the question whether the contract between the plaintiff and the defendant had been broken, it would be necessary, in order to estimate the damages, to try whether a contract between the plaintiff and a third person had been broken.

THE RE-ARRANGEMENT of the Ministry has considerably increased the legal element in the Cabinet, no less than five members of which, independently of the English and Irish Lord Chancellors, have been practising barristers. Mr. MATTHEWS belonged to the Oxford Circuit, and Mr. STANHOPE to the Home Circuit, while Lord CRANBROOK, Lord CROSS, and Sir HENRY HOLLAND were all members of the Northern Circuit. Among Ministers of less than Cabinet rank who have been in actual practice at the bar may be mentioned Sir JOHN GORST, Mr. RAIKES, and Mr. STUART WORTLEY, while Mr. PLUNKET is an Irish Queen's Counsel.

ON THE FORM OF MORTGAGE BILLS OF SALE.

III.

WE resume the series of articles which, after the second article (ante, p. 56), was suspended awaiting certain decisions of the Court of Appeal.

Hiring agreement.-The decision of the Court of Appeal in The North Central Wagon Co. v. Manchester, Sheffield, and Lincolnshire Railway Co., delivered on the 15th of December, reversing the decision of Bacon, V.C. (34 W. R. 430, 32 Ch. D. 477), renders it necessary to modify very slightly the statement (ante, p.41) as tc the law relating to attempts to evade the Bills of Sale Acts by a sale to the lender and a demise back to the vendor, which will be found In the case in stated correctly in 30 SOLICITORS' JOURNAL, 448. question the wagons belonged to the Blacker Co., subject to a lien to the Sheffield Co. for £257. In February, 1884, the Blacker Co. wanted to raise £1,000. They agreed to sell 100 wagons to the plaintiffs for £1,000 on an arrangement that the plaintiffs should let them to the Blacker Co. on a hiring agreement. The hiring agreement was executed on the 18th of February. On the following day the plaintiffs sent, at the request of the Blacker Co., a cheque for £257 to the Sheffield Co., and a cheque for £743 (the balance of the £1,000) to the Blacker Co. In the opinion of the court the agreement for sale, followed by sending the cheques, was a complete sale, not carried out by any document; and its effect was not altered by the documents following:-First, an invoice dated the 18th (but handed to the plaintiffs on the 19th ?) February, shewing how the purchase-money had been appropriated. Second, a receipt from the Blacker Co. in the form following:-"Received of the North Central Wagon Co. cheque, value £733, which is placed to your credit, with thanks"-the result being that there was no bill of sale. The question being raised whether the receipt was not a "receipt " within the definition of "bill of sale" in the Acts, Cotton, L.J, stated that, in order that an invoice or receipt should constitute a bill of sale, it must be an assurance of personal chattels," unless it came within the subsequent words "authorities or licences to take possession of personal chattels." In the present case the evidence shewed that there was a complete contract for sale before either the invoice or receipt was given. Bowen and Fry, L.JJ., concurred, the former pointing out that the ratio decidendi of Cochrane v. Mathews (10 Ch. D. 80), Ex parte Odell (27 W. R. 274, 10 Ch. D. 76), Ex parte Cooper (10 Ch. D. 313) was that certain documents ought to be read together, and that, when they were read together, they amounted to an assurance of the chattels. (See this discussed ante, p. 41.)

[ocr errors]

66

[ocr errors]

Provisions as to payment.-These are not given in the body of the Acts, but the form in the schedule to the Act of 1882 shews that the rate per cent. per annum and the time of payment must be specified.

Notwithstanding that the rate of interest is to be stated "per

annum," a statement of the rate per month is sufficient: Lumley v. Simmons (34 W. R. 759). Apparently, if no rate of interest is specified, but a fixed sum is to be paid as interest, the bill is bad: see Myers v. Elliott (16 Q. B. D. 526), in which the decision in Thorp v. Cregeen (33 W. R. 845), upholding a bill of sale in this form, was disapproved of; the last-mentioned case and Wilson v. Kirkwood (27 SOLICITORS' JOURNAL, 296; same case, W. N., 1883, 40, 44) must be considered as overruled. The reservation of compound interest renders the bill of sale void: Goldstrom v. Tallerman (17 Q. B. D. 80), reversed on appeal on the construction only, 14th of November, 1886, so that the case is still an authority on the point for which it is cited.

hereby secured": Bianchi v. Offord (17 Q. B. D. 484), the bill of sale was held to be invalid.

CONCERNING SEARCHES.

(XX.) WHAT SEARCHES ARE USUALLY MADE. WE have already, in explaining the nature of the different things that can be discovered by a search, pointed out what are all the searches that can possibly have to be made; we now proceed to consider what searches are usually made in practice. This is a very diffiThe principal may be made payable by instalments, notwith-cult task, as the practice is not uniform in all offices; it is constanding that it is provided that on default of payment of any stantly changing, and there are no judicial decisions as to what instalment, they shall all become due: Lumley v. Simmons (34 are the proper searches. W. R. 759).

The direction that the stipulated time of payment shall be stated is imperative. "The words of the statute and schedule are, perhaps, not clear; they may well include a time fixed by reference to any known event; they may, perhaps, include a time to be ascertained by the happening of some contingency; but they do not, in our opinion, include a time to be ascertained by nothing but the mere choice and volition of the holder of the bill of sale," per Fry, L.J., Hetherington v. Groome (13 Q. B. D., at p. 792), in which case it was held that an agreement for payment on demand " rendered the bill of sale void see also Clemson v. Townsend (1 Ca. & El. 418), Mackay v. Merritt (34 W. R. 433), Bianchi v. Offord (17 Q. B. D. 484), Melville v. Stringer (13 Q. B. D. 394), Sibley v. Higgs (15 Q. B. D. 619). The case of Davis v. Usher (12 Q. B. D. 491) must be considered as overruled. Notwithstanding the opinion of Fry, L.J., stated above, it is now decided by the unanimous opinions of Lord Esher, M.R., Lindley, L.J., and Lopes, L.J., that the time of payment being uncertain avoids the bill of sale: Hughes Little (35 W. R. 36).

Bill of sale given by way of indemnity.-Sometimes a bill of sale is given in consideration of the grantee becoming a guarantor for the grantor to a creditor; in this case the sum secured by the bill of sale is payable at (or at some time determined by relation to) the time when the grantee pays the original creditor, and the amount secured by the bill is the amount so paid by him. A bill of sale of this nature is void for two reasons (Hughes v. Little, 35 W. R. 36, reversing 17 Q. B. D. 204)

First, the liability of the grantor to pay the grantee arises on the failure of the grantor to pay the original creditor, and may not arise at all, so that the time of payment is uncertain.

Secondly, the amount that the grantee has to pay to the original creditor, and therefore the amount that the grantor has to pay to the grantee, is uncertain.

It also may, as in Hughes v. Little, be void as not being in accordance with the statutory form.

Provisions as to the maintenance or defeasance of the security.The prescribed form authorizes the insertion of "terms as to insurance, payment of rent, or otherwise, which the parties may agree upon for the maintenance or defeasance of the security."

Insurance. An agreement that the grantor shall insure against fire, pay the premiums, produce and deliver to the grantee the receipts for the premiums; that, on his default, the grantee may insure; that all moneys paid by the grantee for that purpose shall be repaid to him by the grantor on demand, and, till payment, shall be charged with interest on the premiums, does not avoid the bill of sale: Hammond v. Hocking (12 Q. B. D. 291), Ex parte Stanford, Re Barber (34 W. R. 507, 17 Q. B. D. 259). In these cases the grantor had power to repay to the grantee any moneys paid for insurance whenever he liked, and the rate of interest was £5 per cent. per annum. On the other hand, where the moneys were to remain a charge during a fixed period at £20 per cent. per annum, the provisions were held to invalidate the bill of sale: Goldstrom v. Tallermann (34 W. R. 459, 17 Q. B. D. 80).

Rent, rates, and taxes.-Where there were covenants by the grantor to pay rent, &c., to produce receipts for rent, and that on breach of any covenant by the grantor, all the moneys secured should become due: Davis v. Burton (31 W. R. 523, 10 Q. B. D. 414, 32 W. R. 423, 11 Q. B. D. 537), and where, if the grantor neglected to perform his covenants as to rent, &c., the grantee might do so, and that the sums so paid by him "should be recoverable in the same manner as the principal moneys and interest

There is a preliminary question, Whether it is worth making any searches? That eminent conveyancer, the late Mr. Dicey, once stated to the present writer, "I must say that my own opinion is rather against the utility of searches, except in Middlesex, Yorkshire, and for bankruptcies. But in the case of a mortgage, at least, I think it safer to adhere to the established practice as to searches." A solicitor who holds an important official appointment, in the exercise of which he has constantly to make very small transactions in land, told the writer that the expense of the usual searches would sweep away all his costs, and perhaps put him out of pocket in purchases of this nature, and that therefore he invariably omitted them, running the risk of an action for negligence (see 30 SOLICITORS' JOURNAL, 683). Notwithstanding these remarks it is the usual practice to make searches, restricted in the manner that we shall point out.

SEARCHES MADE BACK TO LAST PURCHASE.

Some years ago it was the custom to search against every person mentioned in the abstract who had been owner. As above mentioned, this practice is still followed by some firms as to searches in register counties, but perhaps the more usual plan is to search against the last purchaser on sale and all persons claiming under him. persons claiming under him. This practice is practically safe, owing to the great probability that, in ordinary cases, similar searches were made on the occasion of the last purchase, and that either nothing was discovered on that occasion, or that if anything was discovered it was satisfactorily disposed of. On the other hand, if there were special circumstances attending the sale-as, for instance, where, though it was nominally a sale for value, it was really a part of a family arrangement; or where it was a sale of a small plot to enable a landowner to round off his property, we cannot feel certain that the proper searches were made; and therefore in cases of this sort we ought to carry the searches further back. As, however, cases of this sort are rare, we shall, in these articles, assume that the searches are to be carried back to the time of the last purchase on sale. It may be asked, why do not we content ourselves with carrying back the searches to the last mortgage? There are two reasons. First, we can never be sure that a mortgage was not given to secure an antecedent debt, in which case the mortgagee might omit the searches; secondly, if the security is ample, a mortgagee might reasonably omit to search for charges of the nature that we discussed 30 SOLICITORS' JOURNAL, 699, 714, which are often called terminable charges. It is, however, right to point out that some practitioners of eminence only search since the last mortgage.

Where a vendor or mortgagor has in his possession a certificate of an official search made under the Conveyancing Act, 1882, it ought to be shewn on the abstract.

LOCAL AND PERSONAL ACTS.

There is, unfortunately, a practice growing up, but to what extent we cannot say, of passing Local and Personal Acts authorizing a company or some public body to improve buildings within a limited area, and to make, perhaps with the consent of the Chancery Division, a charge, generally of a terminable nature, on the property for the amount expended. See, for example, the "Improvement of Buildings Act (23 & 24 Vict. c. cxix.) (Local and Personal), authorizing the company thereby incorporated to improve buildings in the following districts:-First, the London district, comprising all lands situate within a distance of fifteen miles, measured in a straight line, from any part of St. Paul's

[ocr errors]

been imposed on agricultural land which becomes building land before the charge expires. It might be thought that no searches need be made for any terminable charges as to land within a town, but this is not the case; one of the large London properties is subject to charges of this nature.

SEARCHES AS AFFECTED BY THE NATURE OF THE PROPERTY. Copyholds. It has been said (1 Bythewood, by Sweet, 3rd nold, 2 Y. & C. C. C., at p. 390) that the court rolls of a manor are not notice to a purchaser. On the other hand, Leach, V.C., says, in Pearce v. Newlyn (3 Madd., at p. 188), that "a purchaser is affected by notice of the court rolls as far back as a search is necessary for the security of the title." These conflicting dicta may perhaps be reconciled, as meaning that the court rolls may be considered to be notice to a purchaser who searches, but not to one who does not. As it is impossible to rely with safety on want of notice, it is now the invariable practice, notwithstanding the remarks of Lord St. Leonards above referred to, to search the court rolls. It should be observed that in some manors a surrender made out of court may be presented at any time, and an admittance taken thereon, so that a subsequent incumbrancer or purchaser may be ousted by the existence of a surrender which he cannot discover by searching: Horlock v. Priestley (2 Sim. 75). It will be remembered that no searches for Crown debts or executions at the suit of the Crown can be required on the purchase of copy holds: 30 SOLICITORS' JOURNAL, 770. No searches need be made under the Middlesex, Yorkshire, or repealed Yorkshire Registries Acts. All other searches should be made that would be required in the case of freeholds.

Cathedral; Second, the Liverpool district, comprising all lands situate within a distance of ten miles, measured in a straight line, from any part of St. George's Hall, Liverpool; Third, the Manchester district, comprising all lands situate within a distance of ten miles, measured in a straight line, from any part of the Exchange at Manchester; Fourth, the Birmingham district, comprising all lands situate within a distance of ten miles, measured in a straight line, from any part of the Town Hall at Birmingham. The repayment by instalments of the money advanced by the ed., 103; Hansard v. Hardy, 18 Ves. 462; Bugden v. Bigcompany for the purposes of the Act may be charged on the land, with interest, by an order of the Chancery Division. Reference must also be made to the "Chambers and Offices Act, 1881" (44 & 45 Vict. c. clxxxii.) (Local and Personal). This enables "the Chambers and Offices Co." to acquire "common rights," as defined in the Act, over buildings laid out in flats, chambers, or offices, and situate in the County of Middlesex, the Borough of Southwark, the City of London, the Liberty of the Rolls, or in the Parish of Hove near Brighton. "Common rights" include the site of the roads, paths, entrances, staircases, passages, &c., the roof, chimneys, and outer walls, the rights of light and air and other easements over adjoining property, lifts and machinery provided for the general use of the building and occupiers, laundries, baths, lavatories, kitchens, closets, &c., fittings and appliances connected with the supply of hot and cold water, soil pipes, drains, and apparatus connected with soil drainage, rain water, and other things mentioned in the Act. The company has general powers to enter and repair, to pay "general expenses,' which include insurance against fire, the performance of the lessee's covenants where the building is leasehold, the payment of rates and taxes, the costs of lighting and warming the building, the costs of painting and repairing, and of new works, wages of servants, the costs of enforcing bye-laws and recovering penalties, and of some other matters. All the several tenements are to pay a proportionate share towards the "general expenses," and the owner or occupier of each tenement is to pay "special expenses" incurred with respect to his tenement as certified by the surveyor of the company. The proportion of general expenses and also the special expenses payable to the company in respect of each tenement is to be a debt due to the company "from the owner and also from the occupier of the tenement," and is made a charge on his holding; the company, besides its remedy by action, may recover the amount by distress, entry and receipt of rents, and appointment of a receiver, leasing an unoccupied tenement, and may enforce their charge in the same manner as if the owner had agreed in writing to make a mortgage to the company for the amount due; the charge is to take priority over all other charges created after the tenement has become subject to the Act. The company may delegate their powers to a committee appointed by the owners and occupiers of the tenements. No provision is made for the registry of the charges. Having regard to the heavy burden thrown on the owners and occupiers of tenements in a building subject to the provisions of the Act, no prudent person will purchase, take a lease, or even go into occupation of chambers, in places where the Act applies, without inquiring whether the building of which the chambers form a part is subject to the provisions of the Act; fortunately the inquiry is easy, as the company is bound to keep posted up at or near the principal entrance a notice that the building is subject to the provisions of the Act. The omission by the company of keeping the notice up does not appear to prevent them from exercising the powers conferred on them by the Act.

Reference may also be made to the Act regulating New-square, Lincoln's-inn (23 & 24 Vict. c. clxxxiv.) (Local and Personal), imposing rent charges on certain chambers therein, imposing restrictions on the user thereof, and charging the expense of rebuilding chambers in certain cases on the inheritance. We shall not attempt to deal with charges created by Local and Personal Acts, as their existence can only be ascertained by local inquiries.

WHAT DETERMINES THE NATURE OF THE SEARCHES. The searches to be made depend(1) upon the nature of the property; (2) upon the nature of the interest dealt with, and, perhaps, slightly upon whether the transaction is a sale or a mort

gage.

No one purchasing a house in a town would inquire whether it was subject to a charge under the Agricultural Holdings Act. There may be some exceptions to this, for as towns grow very rapidly it is quite possible that a charge of this nature may have

Leaseholds.-Searches on the purchase of leaseholds will be the same as those on freeholds with the following exceptions. It will be unnecessary to search :-(1) for charges under the Public Money Drainage Acts and the Private Money Drainage Act, 1849, unless the lease is for a life or lives, or for years, for a term originally greater than fourteen years, and the rent does not exceed two-thirds of the clear yearly value at the time when the lease was granted; (2) for charges under the Improvement of Land Act, 1864, unless the lease is on life or lives renewable, or for years, for a term of twenty-five years at least or renewable. In these cases the leaseholder and the person in receipt of the rents and profits together make up the "landowner," and must be searched against. Inquiry must be made from the sheriff whether any writ of fi. fa. against the vendor is in his hands, but it will not be necessary to inquire as to elegits.

Advowson. An advowson in gross cannot be taken in execution, as it yields no profits: see Robinson v. Tonge (3 P. W., at p. 401); Westfaling v. Westfaling (3 Atk., at p. 463). It followed that, although, after the passing of 1 & 2 Vict. c. 110, an advowson became liable to the charge created by a judgment under section 13, the charge cannot arise, probably on a judgment entered up on or after the 23rd of July, 1860, and certainly not on a judgment entered up after 27 & 28 Vict. c. 112, owing to the impossibility of delivering the advowson in execution. Probably an advowson appendant can be taken in execution with the manor. An advowson in gross can, however, be extended at the suit of the Crown.

From the nature of an advowson it cannot be liable to drainage or improvement rent charges. It follows that, on the sale of an advowson in gross, the only searches that are necessary are for Crown debts, executions at the suit of the Crown, bankruptcies, lis pendens, annuities, and in the local registers. If it has only been lately severed from the manor, the same searches may have to be made up to the time of severance as if the manor itself was being sold.

Rent charge. A rent charge can be taken under an elegit: 2 Cruise, 52, citing Moo. 32, pl. 104, and Noy. 104 (the latter reference is incorrect), 1 & 2 Vict. c. 110, s. 11, and therefore the same searches for judgments and executions must be made on the purchase of a rent charge as if it was land.

It should be remarked that, although drainage or improvement rent charges cannot be charged on the rent charge itself, still, as, whether they are made before or after the creation of the rent charge, they generally have priority over it, it may, in case the rent charge nearly amounts to the annual value of the land, be advisable to search for them.

« PreviousContinue »