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allowed to exercise the double powers of tenant for life and trustees husband, and was not exerted by him directly. But where there for the purposes of the Act in cases of infancy. But these con- is such a threat, and where the person threatened knows that there siderations do not seem to apply so strongly to the case of is a moral certainty of conviction, it has been already settled that guardians. His lordship thought he had power to dispense with the law will grant relief in other cases, as in that of father and the appointment of trustees under the concluding words of section son : Williams v. Bayley (1 E. & I. App. 200). Unless, then, we 60, which says that the powers of a tenant for life may be exercised can conclude from Mr. Justice KEKEWICE's judgment that in the on behalf of the infant by the trustees of the settlement, and if case of husband and wife the law would go further, and would there are none, then by such person and in such manner as the dispense with the necessity for a moral certainty of conviction, court, on the application of the guardian or of a next friend of the the above remarks do not seem applicable to the case. The infant, "either generally or in a particular instance orders.” But judgment, however, is not quite clear, though the decision would it is submitted that those words only mean what they say-namely, apparently have been in the wife's favour could she have proved that the court may either give the guardians a general power to exer that there was merely a promise to let her husband go if the cise the powers of a tenant for life on behalf of an infant, under which shares were transferred, but, if not, then to prosecute him. As they could sell the whole estate, or (as in the case now under con a inatter of fact, it appeared that she had been specially told by sideration) power to sell a portion of the estate in a particular case. her solicitor that her husband was not liable to a criminal chargé, Section 60 occurs in that portion of the Settled Land Act which and that in spite of this she made a voluntary offer to execute the deals with "limited owners generally " (Part XIII.). When in- transfer. As her husband's creditor thus got a chance of having formation respecting the trustees of the settlement is sought, re- his debt paid, he naturally accepted it. It still remains, then, to course must be had to another part of the Act-namely, Part X., be decided whether the law will extend special consideration to which is headed "Trustees"; and it seems that all section 60 married woman, not only in case of undue influence by her does is to say who is to exercise the powers of the tenant for life, husband directly, but also where the undue influence is founded leaving questions of the appointment and duties of trustees to upon her affection for him. another part of the Act. It is improbable that the recent case will go further, but it is extremely probable that a similar application will come before the Court of Appeal, when an interesting discussion
Sir H. SELWYN-IBBETSON'S Bill to amend the Lodgers' Goods may be expected.
Protection Act, 1871, is a measure of considerable practical im
portance, and, judging from a petition to the Huuse of Commons THE SALVATION ARMy gained a triumph in the recent case of which we printed last week, there appear to be substantial Allen, Appellant v. Munro, Respondent (W. N., 1887, p. 116). grounds for its proposals. It is stated in that petition to be a The Municipal Corporation Acts of 1835 and 1882 (Act of 1835, 8. common practice for unscrupulous tenants to live on the rents 90 ; Act of 1882, s. 23) provide that town councils "may from which they receive from their lodgers, and not to pay their own time to time make such bye-laws as to them shall seem meet for rent for the houses which they sub-let to such lodgers, leaving the the good rule and government ” of a borough, “and for the landlord to obtain his money by action as best he can, bis remedy prevention and suppression of nuisances not already punishable in by distress being barred by the fact that the lodgers' rents are a summary manner by virtue of any Act in force throughout the regularly collected weekly by the tenant, coupled with the adopborough." Under the Act of 1835 the town council of Ryde had tion by them of the well-known procedure of the Act of 1871. made a bye-law imposing a penalty upon any person “who should To remedy this, the Bill provides that “ nothing in the said sound or play upon any musical or noisy instrument, or who Act [of 1871] shall prevent” the superior landlord from proshould sing, recite, or preach, in any street, without having ceeding with a distress upon the goods of a lodger for arrears previously obtained a licence from the mayor." . A member of the of rent "due to such superior landlord by his immediate Salvation Army having been convicted for a breach of this bye tenant,” to the extent of the rent due by the lodger to such law, the court (Mathew and Cave, JJ.) has quashed the convic- immediate tenant, after the lodger has received notice of the superior tion, on the ground that the bye-law was unreasonable and ultrà landlord's claim. There are provisoes that the lodger "shall pay, vires, and, further, on the ground that it gave an absolute discretion to the superior landlord the rent due to the immediate landlord, to the mayor to grant or with hold the licence. The decision seems and "shall pay" future rent in like manner, until the claim of the to be correct. It had already been held in Johnson v. Mayor of superior landlord as stated in the notice shall be discharged. A Croydon (16 Q. B. D. 708) that a bye-law under section 23 of the Act further clause protects the lodger from a double distress by the of 1882, that no person (not being a member of her Majesty's Army serere provision that an immediate landlord distraining upon a acting in discharge of his duty) should sound music in a street on lodger after notice “shall be deemed guilty of a misdemeanor, Sunday, was unreasonable and ultrà vires, and the reason of that and upon conviction thereof shall be liable to å fine not exceeding judgment—that the playing of music, though it may be, is not double the amount of the rent distrained for, or, in default of paynecessarily, a nuisance -is applicable to this case also. If munici- ment, to not more than one month's imprisonment. The lodger pal authorities wish to put down the Salvation Army music, they is also enabled to apply to a magistrate for an order for restoration must either obtain the consent of the Legislature to a special to him of the goods distrained. The Bill is rather clumsily enactment framed to meet the case, or themselves frame a bye-law worded, but think its proposals are just. For the making the playing of music to an excessive degree punishable : mesne landlord, taking everything from his sub-tenants and see Reg. v. Powell, cited in Johnson y. Mayor of Croydon (ubi paying nothing to his superior landlord, no advocacy is needed. sup.), for an instance of such a bye-law being upheld.
The question is, Will the lodger, who is not in fault at
all, be put in any worse position than he was ? Legally, THE MARRIED WOMEN'S PROPERTY Act, 1882, purports to place that his goods may be distrained upon by A. instead of by B. In
it seems not; all that he will have to undergo will be married women in a position of complete freedom so far as their fact, his position will be slightly bettered, for under the present property is concerned. It may frequently happen, however, that law he may be distrained upon by both, by A. for the head rent this freedom will not be found to exist in fact, and it has been until he has made the declaration under the Act, and by B. for his stated by Mr. Justice KEKEWICH this week, in the case of Haywood v. Whitaker, that the law will make due allowance for such cases.
own rent. The Bill displaces B. altogether for a time. Add to Thus, in considering the question of undue influence, there may be the mesne landlord's insolvency, lost one whole quarter's or half
this that the landlord cannot give the notice until he has, assuming circumstances to be regarded in favour of a married woman which year's rent-for no superior landlord reserves a weekly renthave been laid down therefore that, although the court would not sponding amount of weekly payments and absconded. We think
It appears to while the mesne landlord may have fraudulently pocketed a correassume that she was otherwise than a free agent, yet it would it will be found that the landlord comes before Parliament with nå require less evidence to shew influence on the part of her husband fairly just claim which will relieve a substantial grievance and than on that of any other person. In the case in question the wife damage nobody but a fraudulent scoundrel. It is greatly to be stated that she had been induced to make a transfer of bank desired, however, that the Bill should be more clearly expressed. shares by a threat to prosecute her husband for a felony. Thus The rights of the superior landlord, for instance, should be the undue influence was founded upon her affection for her positively, and not negatively, conferred.
ere there that there ttled that father and
lat in the ind would onviction,
359 LORD BRAMWELL'S MOTION in the House of Lords on Monday last | most important Bill, leaving for future occasions the discussion of that the South-Eastern Railway Co. be heard by counsel against the question of the effect of its proposals. the Railway and Canal Traffic Bill (which motion excited some laughter from the noble and learned lord terming the company his
I.-As ro REGISTRATION OF TITLE. “clients "), was negatived without a division, Lord STANLEY of
Machinery for registration.—A Land Transfer Board is to be Preston observing that the company could not hope to be repre- established, consisting of a Registrar-General, a Chief Examiner sented better in the House than they already were by Lord of Titles, and an Assistant-Registrar. The present Office of Land BRAMWELL. There is no doubt that modern practice is against Registry will no doubt be merged in the new board, and the existallowing counsel to be heard on public Bills, although from the ing staff transferred to it. The principal office of the board is to precedents given by Lord BROUGHAM in, moving that counsel be be in London, but there are to be branch offices at such places in heard against the Australian Colonies Bill in 1850-- which motion England as may be specified by Orders in Council. It seems probwas defeated by a majority of eight—the general rule (see May's able that the district registries of the High Court will be Parl. Pr., 9th ed., p. 551) that " a public Bill, being of national selected as branch offices. The principal office in London, and interest, should be debated in Parliament upon the grounds of pub- each of the branch offices, will have à Land Transfer District lic expedieney” has been not unfrequently relaxed, so as to admit attached to it. The idea is apparently to establish gradually so counsel to appear for parties “whose interests, as distinct from
many branch offices that in each district there shall be a local the general interests of the country, have been directly affected” by office and a local register. It is to be presumed that upon the a Bill. Thus, in 1810, certain barley, growers were heard against establishment of a land transfer district including the whole a Bill to prohibit distillation from grain, and in 1833 counsel were district of any of the existing local registries of deeds, such allowed to appear against the Municipal Corporations Bill. Many local registry will be closed. other instances of a relaxation of the rule are stated by Lord Brougham and in May's Practice, but we can find no instance of a has been issued declaring that the registration of the transfer
Compulsory registration of title. After an Order in Council railway company being heard, though there is a precedent pointing of land in any land transfer district is to be compulsory, a someslightly against such a thing—that of the General Turnpike Bill, what novel species of compulsion is to come into force. It is on which were heard, not the receivers, but the papers of the only to apply on change of ownership; but if the owner of any tolls, “ the owners of horses, wagons, and carts.”
freehold land conveys the fee simple, or the owner of any leasehold land assigns his whole interest without registration after
registration has been declared to be compulsory, the conveyance An Act which was passed nearly twenty-eight years ago was, as or assignment is to operate only as a contract, and not to transfer to one of its two principal provisions," brought into operation the legal estate, or confer any right in respect of the land, except for the first time before Mr. Justice CHITTY on Wednesday last. the right of enforcing the contract ; and, as we understand, the costs The 22 & 23 Vict. c. 63, entitled “ An Act to afford facilities for of the conveyance or assignment will not be allowed on taxation. the more certain ascertainment of the law administered in one And a person succeeding under a will or intestacy to the fee part of her Majesty's dominions when pleaded in the courts of simple or whole interest, or a life estate, in freehold or leasehold another part thereof," appears to have practical operation mainly land is to be incapable of taking any benefit from, or exercising or in the solution of variations between the laws of England and creating any legal rights in, the land, until after registration, those of Scotland. There have been several instances in which Mode of registration.—This remains on the basis provided by the courts in England have remitted questions governed by Scotch the Land Transfer Act, 1875—that is to say, registration may law to be settled in the Court of Session, notably Lord V. Colvin be either with an absolute or a qualified or possessory title; but several (8 W. R. 201) and Topham v. Duke of Portland (1 D. S. S. 578, important novelties are introduced. The first is tňat leasehold land 580); but the case of Ex parte Spro appears to be the only may be registered with a possessory title only. The second is a provision occasion on which an English court has settled a question of enabling any person registered with a possessory or qualified title English law for the benefit of the Court of Session. One similar to apply to the board for the confirmation of his title as an application is recorded, but in that case-Re Brodie and Johnson absolute title after the expiration of five years from the date of (30 Beav. 129)—the Master of the Rolls declined to give an such application. The application is to be accompanied with an opinion, on the ground that he had no jurisdiction, the law of both affidavit in a prescribed form as to the title, and by the deposit of a countries being the same on the point in question.
sum for expenses. Notice in a prescribed form, and containing prescribed particulars, will then be advertised in such manner as the board may direct, and will be served on every registered
incumbrancer or cautioner. Within the five years any person THE NEW LAND TRANSFER BILL.
desirous of shewing cause against the confirmation of a title may
petition the board, and on receipt of the petition the board are The measure which has been so anxiously looked for was to inquire into the matters alleged, and are not to make the entry explained by the Lord Chancellor on Thursday evening, and many applied for until they are satisfied that the cause shewn against it of our readers may be surprised to find that after all it is, as is not sufficient. The taxed costs incurred by the petitioner are to regards registration, only an amendment of the Land Transfer Act be borne by the applicant for confirmation unless the board deems bf 1875. The amendments are, it is true, extremely important, the petition to have been presented without reasonable ground. but the new scheme is built up on the ruins of Lord Cairns? When the five years have expired without any sufficient cause project. It supplies the compulsion which the author of the having been shewn against confirmation of the title, the applicant plan of 1875 came ultimately to see was essential to the success may make a final application to the board for confirmation of his of many mode of registration of title, but supplies it only to this title, this application also being supported by affidavit; and the It also aims at diminishing the cost of registration, which consti- the title of the applicant. The effect of this entry will be to make tuted the obstacle to such compulsion. It appears to proceed, to the title confirmed as absolute as it the proprietor had been regisa certain extent, on the scheme for registration without official tered with an absolute title on the day on which the first applicavides a novel means of rapid conversion of possessory or qualified confirmation any person is deprived of any interest in the land, into absolute titles. It also proposes a mode of settling the much- the registered proprietor is to be liable to pay compensation for the mooted question of boundaries of registered land ; and, lastly, pro- same.
An appeal is given to the High Court against any decision poses to establish a land insurance fund.
of the board with regard to the confirmation of a title. But the Bill does much more than provide for the compulsory registration of title ; it contemplates two most drastic alterations ascertaining the boundaries of registered land. The registered dis real property law, both of which have been recently fully proprietor may apply to the board in a like manner to that above briefly as we can, what we understand to be the proposals tate his boundaries ; and the subsequent proceedings as regards objections heime will not allow us this week to do more than state, as description of the land herein contained shall be conclusive as to the
and confirmation will, we presume, be generally similar. It may no doubt, however, be assumed that special provision will be made for APPLICABILITY OF THE LANDS CLAUSES ACT. the contents of the affidavit accompanying the application and for
(Re Mills' Estate, 35 W. R. 65, 34 Ch. D. 24.) the petition shewing cause against the entry. After the entry has been made, the description of the boundaries entered in the register The disagreement expressed in this case by the Lords Justices in is to be conclusive, but the proprietor is to be liable to pay com one branch of the Court of Appeal with the strong remarks made pensation to any person thereby deprived of any interest in the land. by the Master of the Rolls in Re Wood's Estate (34 W. R. 375, 31
The fourth novelty is the establishment of an insurance Ch. D. 607) respecting Lord Westbury's decision in Re Cherry's fund for providing compensation for loss sustained by any person Settled Estates (10 W. R. 305, 4 D. F. & J. 332), seems to justify
giving some consideration to that case. in respect of registered land arising from forgery, fraud, or
Re Cherry's Settled Estates, with which, as far as the present The plan of a guarantee fund adopted in the Australasian subject is concerned, Re Mills Estate is identical, arose upon the Colonies was described in our columns a year ago (30 SOLICITORS' construction of 9 & 10 Vict. c. 34 in connection with 3 & 4 Vict. c. JOURNAL, 316), and it was stated that, the contribution being one i 87, the general question being whether the Lands Clauses Conhalfpenny in the pound on the value of the property registered, solidation Act, 1845 (8 & 9 Vict. c. 18), was incorporated with the the various funds amounted in 1881 to about £200,000, while the Act of 9 & 10 Vict., and the particular point was whether the total payments for compensation had only amounted to £2,504. Commissioners of Woods, &c., who were the commissioners for It is understood that Lord Halsbury's proposals include an elaborate executing the Act, were liable to pay the costs of an order for payscheme for the application of the insurance fund and for the regu
ment of money out of court to a party absolutely entitled, the
Commissioners' Acts (3 & 4 Vict. and 9 & 10 Vict.) not providing for lation of the insurance fees by which it is to be provided. It is payment of those costs, though they provided for payment of some believed that the fees intended to be charged are, generally speak- expenses. To make the case clear it is necessary to state shortly the ing, a farthing or a halfpenny in the pound, according to the cir- enactments of those Acts affecting the subject. cumstances. The High Court is enabled to either order compensa 9 & 10 Vict. c. 34, an Act enabling the Commissioners of Woods tion to be paid out of the insurance fund to any person deprived to construct a new street from Spitalfields to Shoreditch, by section of any registered land by forgery, fraud, or error, or to order 18 enacted" that, for the purpose of laying down and constructing that the land be restored to him and that the person losing the the said intended new street, the said commissioners for executing land shall receive compensation out of the fund.
this Act shall have such and the same powers, authorities, privileges, It is presumed that provision will be made for subsidiary missioners of her Majesty's Woods [&c.] for the purpose of or with
and exemptions as in and by 3 & 4 Vict. c. 87 are given to the Comregisters in which there may be registered public rights affecting reference to the laying down and constructing the several new registered land, incumbrances, restrictive covenants, &c.
streets and improvements therein specified, so far as the same shall As the system of compulsory registration of title involves the be applicable to the said intended new street, and also that all ultimate disuse of deeds of conveyance and mortgage, it will, of powers authorizing incapacitated persons to convey in the said Act course, be necessary to provide that every registered charge on contained shall extend to all the lands and hereditaments to be taken registered land, and every registered transfer of registered land, under this Act; and that all and singular the enactments, exemptions or of a registered charge on land, shall have effect as a conveyance contained shall extend and be construed in all respects as if the
from stamp duties, and provisions in the said last-mentioned Act by deed, so as to make the implied powers and provisions in the said last-mentioned Act had been passed for the purpose of authorConveyancing Acts apply. Priority will, no doubt, also be ex. izing the laying down and construction of the new street by this pressly given to a registered charge for value created on Act authorized to be laid down and constructed, and for the purchase registered land over any charge not previously registered. A and taking of hereditaments, and for the leasing, selling, managing, special provision is, we believe, proposed with a view to the diffi- and disposing of the hereditaments to be taken and the buildings to culty which was so widely felt under the similar provision in the be erected thereon, and as if the hereditaments comprised in the Yorkshire Registries Act, in connection with mortgages to bankers schedule to this Act had been comprised in the schedule to the said to secure current accounts.
last-mentioned Act, and as if the moneys authorized to be raised by
this Act had been authorized to be raised by the said last-mentioned II.—ALTERATIONS IN THE LAW.
Act, and as if the said street hereby authorized to be made had been Succession to real estate on intestacy.—It is proposed that, on exception, in effect, provides for payment of moneys into the Court
by the said Act authorized to be made, except tbat,” &c. This the death of a person intestate as to real estate, his real estate of Chancery, instead of into the Court of Exchequer, shall be administered by his personal representatives in the same 3 & 4 Vict. c. 87, in section 49, provides that where, by reason manner as if it were personal estate. The husband, however, is of disability, &c., of
to property taken only to take a life interest in his wife's realty, and the wife is to under the Act, the purchase-money is paid into court to be take a life interest in her husband's realty. It follows, of applied in the purchase of other property to be settled to the like course, that all general or customary modes of descent, tenancy by uses, the court may order the expenses of purchases from time to curtesy, dower, and free-bench are to be swept away.
time made to be paid by the commissioners. But there is no As to estates tail.—It is proposed that the estate of any tenant for payment of the costs of obtaining an order for payment out of
provision such as is made by section 80 of the Lands Clauses Act in tail of full age, and able, without the consent of any other court to persons absolutely entitled. person, to bar the entail, shall be enlarged into a fee simple absolute, in like manner as if he had executed a disentailing deed. Kindersley, V.C. (10 W. R. 54), who, upon an application for pay.
Re Cherry's Settled Estates came, in the first instance, before Estates tail are not to be created in future, the expressions which ment out to a person absolutely entitled, decided that the commisat present create such estates operating after the passing of the sioners were liable to pay the costs of the application, he holding Bill to create an estate in fee simple absolute.
that the provision for payment of such costs in the Lands Clauses Act was incorporated with the Act 9 & 10 Vict. c. 34.
decision was reversed by Lord Westbury, C., who, in his judgment, In the House of Commons on the 24th ult. Mr. Addison asked the said, "Nothing could define more correctly that the Act is to be read
after quoting section 18 of 9 & 10 Vict. c. 34, is reported to have Secretary of State for the Home Department whether his attention had been called to the great waste of judicial time, the undue protraction of
as written on the Act of 3 & 4 Vict.' He further explained, in Re the assizes in populous places, and the heavy expenses thrown upon the J. & S. 232), the ground of his decision in Re Cherry's Settled Estateiro
Westminster Estate of the Parish of St. Sepulchre (12 W. R. 499, 4 D. country hy a practice introduced of recent years, whereby the judges of assize tried prisoners committed by the magistrates to take their trial at
“The language of the Act & 10 Vict. c. 34, which was in quarter or adjourned sessions of the peace; whether he was aware that question in Re Cherry's Settled Estates, was such as to render transacthe ancient form of the Commissiou of Assize for the county of Lancaster tions under it as though they had been transactions under the ante: grand juries in Lancashire had made presentments against the new altogether; and it followed that the provisions of that general Act system; and whether her Majesty's Government were prepared, by legis. could not affect such transactions." quarter or adjourned sessions of the peace should (unless otherwise above passage from the st. "Sepulchre's case, said: "That ja Aed
The Master of the Rolls, in Re Wood's Estate, after quoting the that the whole of that subject, including not only the times and places of into the new Act. That was the ground of his decision, beening home time under the consideration of a committee of the judges Besitate suis far Yoo refined for my comprehension. I think that if you at the request of the Lord Chancellor. Their report was expected soon, and it would receive the immediate attention of the Government.
had to decide that case now we should decide it directly contrary to
the way in which Lord Westbury decided it, and when I read his
1HE MIDDLESEX REGISTRY.
[To the Editor oj the Solicitors' Journal.]
case of Munton v. Lord Truro (35 W. R. 138, 17 Q. B. D. 783) has drawn In this division of judicial opinion we presume to offer some obser- attention to the overcharges which have been made in the past for vations respecting Re Cherry's Settled Estates. It appears to us that registration of memorials, and we now know what we may be legally Lord Westbury did not take sufficient account of the fact that, required to pay, and that the amount can no longer be determined whatever was the language of section 18 of 9 & 10 Vict. with refer- by the mere will of the registrar or his deputy. It is an open ence to the Act of 3 & 4 Vict., the making of the new street secret that the plaintiff in that case was backed by the moral support authorized by 9 & 10 Vict. was an undertaking falling within the and influence of the Incorporated Law Society, and that, having terms of section 1 of the Lands Clauses Act, which enacts that that minimized and settled the lawful scale of fees on registration, it is Act" shall apply to every undertaking authorized by any Act wbich intended to raise by mandamus the vexed question whether the shall hereafter be passed, and which shall authorize the purchase or registry can compel London witnesses to attend at Great James, taking of lands for such undertaking,” or of this other fact, that, street personally to depose to the execution instead of by affidavit after giving the fullest effect to the words in the 18th section of 9 & before a commissioner. 10 Vict., " as if the said last-mentioned Act had been passed for the Might not the question of what are the legal fees payable on purpose of authorizing the laying down and construction of the new searches now also usefully receive some attention, and, if possible, street by this Act authorized,” and other words of similar import, the a judicial determination ? previous words, “the enactments," &c., in 3 & 4 Vict. c. 87, “shall No doubt it would be more satisfactory if the registry, as a whole, extend and be construed in all respects,” are in their very nature were reformed or abolished by Act of Parliament, and that the necessarily prospective, and became operative from the passing of 9 & public who deal with land in Middlesex were thereby freed from the 10 Vict., and not from the passing of 3 & 4 Vict., so that the extended tax so much in excess of the necessity of the case which may, even operation of the enactments in 3 & 4 Vict. took effect only from the under the powers of the Statute of Anne, be inflicted on them for the passing of the later Act. These facts we think no one will deny, and if benefit of the sole surviving registrar and her Majesty's Treasury;
"' read the now Act into the old Act,” we obviously do so by virtue but, though in the present Parliamentary deadlock there is no hope
From what we have said it will be seen that we think the views Exchequer, and subsequently (see 25 Geo. 2, c. 4, 7 Will. 4 & 1
appointed respectively by the Lord Chancellor and the Chief Justices
in his evidence before the Land Transfer Commission in 1869, plaintively states that for a short time after his appointment he attended regularly at the registry, but found, and was told, that
he was rather more in the way than useful, and that they did better A recent incident in the courts : Learned but irritable judge to counsel :
in his absence. “Really, Mr. X., if you are ignorant of the very elements of law, I
If a general registry of title be hereafter established and the the temple to dine with the opted the ancitation of elements of the purchasers, mortgages, and others Dealing with and in "Middlesex none Prince of Wales has accepted the invitation of the benchers of the allegedwing out of a registrysset up simply the property from fredag
and created out of the fees which they have paid.
Now, while, as I have shewn, those who deal with land in Middlesex provide so handsome an income to the officials of the registry,
CASES OF THE WEEK. we all know how little the comfort and convenience of those who have to frequent it has been studied.
IRWELL v. EDEN-O. A. No. 1, 30th March. The Act of Anne (section 2) gave power to the Lord Chancellor PRACTICE - JUDGMENT Debtor - APPLICATION TO EXAMINE "ANY OTHER and the Chief Justices of the Queen's Bench and Common Pleas and
PERSON” AS To Debts OWING-R. S. O., 1883, XLII, 32. the Chief Baron of the Exchequer, or any three of them, to make The plaintiff had obtained judgment against the defendant for £1,227, rules for the government of the office of the registry. The powers and applied, under ord. 42, r. 32, for an order for the attendance of the of the Chief Justice of the Common Pleas and the Chief Baron of manager of the defendant's business for the purpose of being examined the Exchequer have been transferred to the Lord Chief Justice (see as to what moneys were owing to the defendant, so that they might be section 25 of Judicature Act, 1881), and the power, therefore, to make attached to answer the judgment. Ord. 42, r. 32, provides that " where a rules is apparently now vested in him and the Lord Chancellor. judgment or order is for the recovery or payment of money, the party This power appears never to have been exercised.
entitled to enforce it may apply to the court or a judge for an order that
the debtor liable under such judgment or order, or in the case of a corThe Act requires the officials to keep an alphabetical calendar of poration that any officer thereof, be orally examined as to whether or parishes, extra-parochial places, and townships within the county, what debts are owing to the debtor ; and the court or judge with a reference to the number of every memorial. No such calen- may make an order for the atteadance and the examination of such debtor or dar is kept. Instead of this there is kept an index of grantors' of any other person, and for the production of any books or documents.” names arranged alphabetically by the first letter only of the name, Field, J., at chambers, refused the application on the ground that there and this the officials call the "Parliamentary Index.” The huge was no jurisdiction to make the order. The Divisional Court affirmed this bulk of this index, without any sub-divisions of parishes, &c., renders decision, on the ground that the case was not one in which the power & search therein a matter of very great labour and expenditure of should be exercised ; Denman, J., however, being of opinion that the time. Side by side with this so-called “ Parliamentary Index” is judge's view of the rule was right, Hawkins, J., being of a contrary kept what is called the “Lexicographic Index,” which is an index
opinion. The plaintiff appealed.
The Court (Lord Esher, M.R., and BOWEN, L.J.), having taken time of the names of grantors arranged lexicographically, and a search to consider its judgment, refused the application. They said that if the rule in this latter index takes much less labour and time, but the officials had stopped at the end of the first clause there would be no doubt that say it is private property, and claim the right to charge such the judgment debtor alone, if an individual, or an officer of a corporation, fee for a search therein as they please, and even, if they like, to if the judgment debtor were a corporation, could be ordered to be refuse to produce it at all.
examined under the rule. Upon the last clause they had come to the The Act says that for every search there shall be paid a fee of “one person as it was proposed to examine here. The words did not mean;
conclusion that the words "any other person' did not include such a shilling, and no more.”
where the judgment debtor was an individual, any other person besides Practically, then, what the officials do is this: they keep what they the judgment debtor himself; they referred, where a corporation was a call the “Parliamentary Index” in a form other than that the Act judgment debtor, to any one of its officers. -COUNSEL, Coek, Q.C., and requires, and in so cumbrous a shape that a search therein is a matter w. S. Goddard. SOLICITOR, E. Hart Smith. of such great labour and expense as to make it almost prohibitory, and for a search in this they charge the statutory shilling, and, at
HAMILL v. LILLEY-C. A. No. 1, 30th March. the same time, they keep side by side with this a much better, PRACTICE-APPEAL FROM Court of Appeal to House of Lords—STAY though any thing but perfect, index (the Lexicographic Index ”),
OF EXECUTION. which they claim as their private property, and for a search wherein they charge 2s. 6d. Will this hold good if challenged in a court of
In this case, the plaintiff having obtained judgment in the Court of law? I can hardly think so. What would be said if a similar Appeal, the defendant applied and obtained from a master a stay of exeproceeding were to take place at the Central Office, or at the the judge at chambers. On appeal to the Divisional Court that court Probate Registry, or any other public registry?
held that there was no authority in the master to grant the stay of exe. With the ample funds at their command, there is no reason why cution, and accordingly dissolved it. The defendant now applied to the the officials should not make and keep very much more perfect in- Court of Appeal by way of original motion. dices or registers even than the “Lexicographic Index," and divided The Court (Lord Esher, M.R., BOWEN and Fry, L.JJ.) having into divisions of parishes and otherwise so as to lessen the labour and taken time to consider the point, said that they had come to the time expended in searching, and that without any higher fee than conclusion, as a matter of practice, that where there was an appeal one shilling being charged, and I contend that it is the duty of the whether the Court of Appeal had dismissed or allowed the appeal from the registrar to see that this is done.
court below, if there was any proposition to stay execution the application I maintain that no private indices or registers can be properly kept should be made solely to the Court of Appeal, and not either to the master in the office of the Middlesex Registry, and that all and every the indices or to the court below. The application was then heard on the merits and or registers now kept in the office (including the "Lexicographic dismissed. —Counsel, Henn Collins, Q.C., and Hindmarsh ; Lumley Smith, Index") are public indices or registers and that the public have Q.C., and Percy Gye. SOLICITORS, F.' D. Simpson $ Co.; G. S. & I. a right to make a search in all or any of them on payment of one
Brandon. shilling and no more. There is a question no doubt as to what the Act means by a search.
ELLIS v. STEWART-O. A. No. 2, 30th March. The officials contend (though not always) that it means a search in AppeaL—Security for Costs-Costs or APPEAL ALREADY INCURRED-one name on one day, and that a separate fee must be paid for each
R. S. C., 1883, LVIII., 15. separate name searched. I maintain that for one search fee a person plaintify might be ordered to give security for the costs of the papers of
This was an original motion by some of the defendants, asking that the and it is one amongst many other matters which one would have bearings izthet march the plaintiffserved notice of appeal. On the Lit. long as it is in one matter or transaction. I admit this is not clear, which he had given notice. The appeal was in the paper of the day for thought would have been made clear by rules, such as the Act of farch the defendants solicitors wrote to the plaintiff's London agent authorizes to be made, and which ought to be made and posted up in asking whether the plaintiff was willing to give security for the costs.be the office in order that all persons having business therein may know the appeal without an application to the court for the purpose. The what may be demanded of them and required by them.
Surely, Sir, it is time that, either by bringing a case before the defendant's solicitors replied that they would wait till the 21st of March High Court or by appeal to the Lord Chancellor ande Lord Chiet before giving notice of application to the court, On the 21st of March Justice to exercise their powers under the Act, something were done thon defen degetet, s servedla notice of motion in the Court of Appeappear to remedy the state of things I have endeavoured to point out.
Cannot the Incorporated Law Society help us in this? Spring-gardens, March 24.
GEO. P. JACKSON.
being already in the paper, and the costs having been already incurred, it would be contrary to the settled rule to order security to be given. An objection was also made to the evidence of the plaintiff's inability to pay the costs of the appeal if he should be unsuccessful. That evidence was that he had failed to pay some costs which he had been ordered to pay
in an action between himself and another person. Circut -- Winchester, Saturday, April 25 g boxet er en fonday, Mayten tions, and ordered the plaintiff to give security. Cotton, L.
The Court (Cotton and LINDLEY, L.JJ.) overruled both objeca Taunton, Monday, Mayo. North-Eastern Circuitelewcastley, Wednes: that as a generaredule it was too late to ask for security for the cost in day, April 20; Durham, Saturday, April 23 ; Leeds, Friday, April 29. an appeal after the appeal had come into the paper for hearing; Northern Circuit-Carlisle, Wednesday, April 20; Manchester, Monday, the present case there was no
unreasonable delay in the defendants Ipswich, Tuesday, April 19; Cambridge, Tuesday, la pril26; Hertford, without an application to the counter As to the other point, thecurity Monday, May 2; Lewes, Saturday, May 7.
| payment of prior costs was not, of itself, a ground for requiring security