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Vol. XXXL, No. 24 THE SOLICITORS’ JOURNAL.

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In the Solicitors’ Journal.

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The Solicitors’ journal and Reporter.
LONDON, APRIL 9, I887.

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_ toll ;lWr‘HEB conuim we commence a series of articles explanaw?’h° T 9 provisions of the Lord Chancellor’s Land Transfer Bill. efimfltvo geason to suppose that it is intended to make a vigorous elzewh 0 ave the Bill passed into law this session, and we refer mu“ "6 ti] some considerations which seem to render such a of mP°"1 9; but 111 the present state of matters in the House dict thalzlglfl he would a bold man who would confidently preblock of b e_measure _will surmount the obstacles presented by the we are lllslness which must necessarily have precedence of it. conve Bfld to learn that the precedent set with regard to the that tl£;“%7§€ Act has been followed on the present occasion, and come an lll has been sent to the Bar Committee, many leading for thg 0°", and to_tlie Council of the Incorporated Law Society

P‘“'P°B@ Of criticism and suggestion.

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provided (section 111) that the Lord Chancellor might, with the advice and assistance of the registrars, make, rescind, or add to general rules in respect of (inter alia) “ the costs to be charged by solicitors or certificated conveyancers in or incidental to or consequential on the registration of land,” but this section is proposed to be repealed by the Bill; and clause 29 enables the Lord Chancellor, by order, to make, rescind, and amend rules in respect of (inter alirz) (8) “the costs and fees to be charged in or incidental to or consequential on the registration of land, or any other matter required to be done for the purpose of carrying the principal Act into execution, with power to require those costs and fees to be payable by com mission, percentage, or otherwise, and to bear a certain proportion to the land registered, or to be determined on such other principle as may be thought expedient; and (9) the taxation of costs, and the persons by whom costs are to be taxed and paid.” It will be remembered that the Remuneration Order (clause 1) expressly provides that the scale in Schedule I. “ shall not apply to transactions respecting real property, the title to which has been registered under” the Land Transfer Act, 1875; and the result appears to be that, while the Legislature has provided a “tribunal,” on which solicitors are represented, to prescribe nnd regulate their remuneration in respect of business connected with dealings with land, the Bill proposes to place such remuneration ultimately at the absolute discretion of the Lord Chancellor for the time being. What is intended with regard to the remuneration on first registration of laud? Is it the intention that the solicitor shall be entitled to his full scale fee in addition to reasonable charges for the extra work of communicating with the registry? This would unquestionably be fair. Or is it intended, when the practice becomes fixed, that a scale shall be added to the Remuneration Order for this class of work? And what is to be the rule in registrations subsequent to the first? As we point out elsewhere, it appears probable that if the Bill passes as it is drafted, deeds will have to be executed on most dealings with land until an absolute title has been acquired; how is the remuneration for these to be dealt with, and how is the investigation of title prior to registration to be remunerated ?

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Soiis MEASURES are, it is understood, being taken with a. view of ascertaining whether the fourth resolution of the Lord Chan_ce_ll_or’s Committee on the courts and chambers of the Chancery Division, and the distribution of the clerical stall, can be usefully carried out. That resolution is as follows :—“(4) That the whole administrative stafl of the Chancery Division in LOIJIIOB Shall eventually be brought under the control of the several Chancery judges, by attaching to each judge a sufficient number of cl_eiks to (lo all the business of Chancery causes and matters, including the drawing of orders and taxing costs ; the duties of such clerks and the distribution of business among them to be_ determined by rules to be made by the judges of the Chancery Division.” Already a scheme for amalgamation of the registrars’ and chief clerks’ departments has been concocted by a gentleman who has some acquaintance with Chancery business; but another of equal o_r greater experience has thrown cold water on the scheme. It_ is now stated that the matter is to be investigated on_ oflicial authority. The first point which strikes us on reading the resolution is the question of control. Each of the chief clerks 18 under the control of the judge to whom he is attached; ai:d_we never heard that either the registrars or the_taxi_ng masters failed to acknowledge themselves amenable to the directions of any judge of the Chancery Division. It must, then, be presumed that the intention is that each judge shall have a certain number of oflicials to do the work of that one judge iiow done by the registrars and by the chief clerks and by the taxing masters. Apart from the value of the division of labour which the present system Ii-thirds, it must be admitted that tlmt_ plan is the best which provides =18 nearly as may be for uniformity of practice in the work done by these oflicers. The facts that the registrars attend in rotation_on all the judges of the Chancery Division, and that the taxing masters have all their work allotted to them by a. system of rota} tion, afiord something like a guarantee that, when the benefit 0 the ways and opinions of all the judges is so evenly dlstributefh the business transacted by those who receive that benefith Wild be done on a uniform plan. Any scheme which i~ 0'1

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make such a radical alteration as that suggested by the resolution would require careful study, and the Council of the Incorporated Law Society and the heads of the profession should see to it that nothing is done hurriedly. It should be clearly understood what are the inconveniences or evils to be met, whether they consist in delay or extra expense, or what other form they take; and when this has been ascertained, the opinion of those experts who are most familiar with the working of the present system, and who may be supposed to be best acquainted with its faults, should be called in to aid in devising such alterations as may be absolutely necessary. We may add, with great respect to the framers of the resolution referred to, that they are not the experts qualified to deal with this matter.

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WE naronran afortnight ago (ante, p. 348) a case of In the Goods of Price, in which, on the 22nd of March last, Mr. Justice Btrr laid down a new rule as to grant of probate of the will of a married woman; but the decision does not appearto have reached the Timea law reporters until Wednesday last, and the case was gravely reported on Thursday without date. According to Mr. Justice BUr'r’s decision (which is understood to have been given after consultation with the registrars and with the concurrence of Sir Isiias HANNEN) probate is in future to be granted of a will whereby a married woman disposes of her separate property in the ordinary form, and without the words of limitation hitherto used. The learned judge based his decision on the “policy of recent legislation having been to place amarried woman, so far as her separate estate is concerned, in the position of a fame sole,” but in the ]u_dgment in Scammell v. Wilkinson (2 East, at p. 558) there might have been found another ground for the new rule. L.m'nr:ivos, J ., there says: “In this case it appears that the Prerogative Court is applied to to grant a probate which will give to a will made by a married woman during her coverture the efiect of a_will made during widowhood and discoverture. And it is not impossible but that the Ecclesiastical Court may in this case grant such probate, for by the civil law a jeme covert might make a will, and so she might by the canon law.” Most people will concur in Mr. Justice BUrr’s observation that he had never been able to understand the necessity, even before the recent legislation, for the old form of limited grant.

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_Iiv THE couuss of his speech in introducing the Land Transfer Bill, the Lord Chancellor referred to the difficulty by which he had at first been greatly pressed, as to whether it was possible to give a title which should include the boundaries of the rcgistcrcd land, and he said: “On that question my views have been considerably modified by what I have learnt since. I have heard with great surprise that there exists _at the present moment a register in which every_yard of land in this country has been registered by a tribunal which has worked noiselessly and inexpensively. The Land Tax Commissioners have a register of every yard of land in this country, and it has been formed with a degree of accuracy and _precis1on that to _me is absolutely astonishing. The commissioners have, from time to time, without expense to anybody, been called upon constantly_ to decide questions of adjoining boundaries. That system exists in every county of England. I think there are 380 land tax districts in England in which that system exists." It may probably be presumed that this indicates a contemplated alteration in the “public map ” to be used for the purposes of registration. The rules under the Land Transfer Act, 187? (rule o0), prescribe the ordnance map on the 25-inch scale, or, if there is no such map, the map under the Inclosure Act 1845 or, in default thereof, the tithe map as the public map of this land, lgutdenablg the Y°_S1Btrar at any time to declare that any map shall

0 Come a public map for the purposes of registration.

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THE LAND TRANSFER BILL. I.

Tim portion of the Chancellor's Bill that will be most immediately interesting to the professional lawyer will no doubt be that relating to land transfer proper. The abolition of primogeniture and estates tail, though involving care and research on the part of the draftsman, are questions of little more than yes or no to the legislator. With respect to them it may fairly be said that the only point ever doubted was whether the public desired the change: as soon as this is found to be the case, there is no serious legislative difficulty in effecting it. The abolition of estates tail may, however, give rise to a not unprofitable discussion (to be entered upon on a future occasion) as to the form which settlements of land may now be expected to take. The abolition of primogeniture will doubtless prevent much hardship to many individuals, but will scarcely raise any legal questions of more than microscopic interest. The clauses relating to the real representative may or may not contain the germs of a number of originating summonses, but there the matter will probably end.

When we turn, however, to the question of improving land transfer by establishing registration of title, we come upon a subject which is in exactly the opposite predicament to the preceding ones. There is a general agreement among the public that it is wanted ; the only doubt is whether any given machinery will suffice to effect the desired object. The three Lord Chancellors who spoke in the House of Lords on the first reading of the present Bill were all agreed that the Land Transfer Act of 1875 established a system which only failed because its adoption was voluntary. If this is indeed so, the present Bill, which makes the adoption of that system compulsory, is certain to succeed.

But this does not entirely dispose of the case. For, without going so far as to throw doubt on a proposition so strongly supported by authority, it may be fairly remarked that there are degrees even in success. And therefore, by way of helping to secure the largest amount of success possible, we propose to discuss in this and succeeding numbers a few points in the Bill which appear to present suitable matter for quiet inquiry. We are_the more inclined to this course in that the broad antecedent questions of whether or not registration of title is the best system to adopt, and whether or not its compulsory enforcement is either necessary or expedient, are questions which have already been so full)’ discussed, both in these columns and elsewhere, that we 001_1ld hardly feel justified in inflicting on our readers a fresh dissertation on so stale a subject.

Without intending to discuss the momentous question as to what chances the present Bill, or any particular portion of it, 119.91 _°1' has not, of becoming law in this or any future session of Parliament, it may nevertheless be as well to observe that, §l10\1£h}t5 compulsory clauses will probably be opposed by an lliflllelltlfll portion of the legal profession, it is, at any rate, quite possible that the Bill will pass, and in this session too, substantially u11filte1_'°d~ A Conservative Lord Chancellor, possessed of a strong det/erm1_Dfli1°ll» supported in the main by two Liberal lords who have occupied the woolsack, is not likely to meet with insurmountable obstacles in the House of Lords ; and, when the Bill appears in the Commons, we shall probably have reason to admire the wisdom which included the abolition of primogeniture and estates tail in a measure entitled “Land Transfer Bill.” It will be welcomed by the Liborfllsiai least as an instalment), and with no other regret than that it comes from the wrong side. Thus the only opposition to fear willbe that of pure obstruction. But the examples of the Conveyancing Acts and the Settled Land Acts are enough to shew that the progress of a purely legal enactment (provided its promoters fife in earnest) which is not offensive to the genuine opposition 19 !1°i much retarded by the prevalence of obstructive tactics geneNl1Y'

We venture to put these considerations before our readers becallsv we think that, if borne in mind, they may exert a useful influence 011 the course of the discussions that will soon arise. It is hardly io be expected, for instance, that, in the present temper of the Pulflw on the subject, so popular a suggestion as compulsory registration of title will be rejected owing to the protests of the legal i>r°*“' sion, however strong; while it may be expected with som9_°°“' fidence that the suggestions of the profession as to the 11991115 i° be observed in carrying it out, if it be passed, will meet Wlih Hm

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full attention which they undoubtedly deserve. If siich suggestions are given temperately and received considerately, we mav as well frankly admit, at starting, that we see no reason whylthe measure should not fulfil all the reasonable expectations of its originator and supporters.

We shall proceed, therefore, on the assumption that the Bill will pass, substantially unaltered, at an early date.

- ~ As T0 LAND TRANSFER.

The Bill makes three substantial additions to the Act of 1875, and introduces one important administrative change.

The additions are :—

(1) The compulsory clauses and ancillary provisions.

(2) “Confirmation” of possessory titles after due notice and the lapse of five years. ‘

(3) The insurance fund.

The administrative change is :—

(4) The Laud Transfer Board, regulated by Orders in Council.

These four_ points will be considered in their order, and then some observations _will be added on the Land Transfer Act of 187 5, to which the Bill is supplemental, and to which it gives a greatlyincreased importance.

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(*1-)_C_'an 111.», beper-nderlf-—It used to be doubted by high authorities whether it would be possible to frame a compulsory elapse that would not be evaded. Lord Cairns says, as late as 1319, “_ho_way that has yet been proposed would have the effect of making it compulsory to_put land upon the register ” (Evidence to Mr. O. Morgan's Committee, 1879, No. 2871). The clause in Lord ficlborne s Bill of _l874 (clause 27) was as follows :—-—“ When there isa sale of land in fee simple, there not being already a registered proprietor, some person shall be registered as proprietor, and any conveyance shall, until registration, operate in equity only, and not_be effectual at law to pass the legal estate.” Of “"91 Lord Cairns says, “Lord Selborne’s proposal was no doubt Silo bestthat the case admitted of, . . . but, unfortunately, the -l I_1dicati_ire Act knocked on the head, for all practical purposes,

e distinction between the equitable and legal estate; and a man with an equitable estate was practically as well off as a man with 219891 Bfitflte ' (Evidence, 1879, No. 2872). It may be doubted,

owever, whether this latter statement was absolutely correct; in cases of tacking, for_instauce, “ the law ” will still prevail.

_In the present Bill the form is much stronger. “ Until a proprietor . . . has been registered, acoiiveyance . . . shall . . . operate only as a contract, and not convey to any person “Y legal estate in the laud, nor render him capable of taking “Y benefit from, or e.rerciain_q or creatiiig any Ir-gal right in, or Z;-eglil °P111pon land, nor corjfer on him any equitable right in respect the ertllld {arcept the right of enforcing the contract.” This is 83 elm ,FEPllcable t_o ponveyances of freeholds, including mortmi -_ _ ere are similar provisions as to leaseholds and as to

Ҥm1I!_ions on death.

Bomeedwg “Pt Pretend to say whether or not, at the instance of dame B fluined settlor perhaps._a mode of circumventing this defegteglatyil some day be devised (like the lease and release which appear th if Btfltlllo 2? Hen. 8, c. 16). But it would certainly ngistmf B the ob]ections of the great body of landowners to mm toiou must be far greater than they are now before they are tmngles oplnfide themselves in any large numbers to the sea of words wwhlcll §l11B_ formidable clause would raise for them. The from re ‘Eve italicised would prevent the unregistered purchaser miongfo? "8 an eflicient mortgage or lease, or bringing any damages _recovery of re_nt_, for e]ectment, or for an injunction or mnbe :1 '"P°°t °_f 1l1]l1ry_ to the property, and there might

The mine trouble in establishing his right to devise it by will. umiequenclllkenoy of this clause brings with it the following mtem ha§*llame1Yi that every person who, under the present smemv h 9- fight to call for a conveyance should, under the new expmvl "9 power to demand registration. This is nowhere

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resorted to, as being the cheapest. No examination of title is made by the.registrar, but he only gives a guarantee as to subsequent dealings. Therefore it is not of very great value until it is either “ confirmed ” under the present Bill, or a sufficient time has elapsed to render the anterior title uninteresting to purchasers. (Confirmation will be treated in our next issue.) But should it be found possible (as is not unlikely, now that an insurance fund is to be established) to relax some of the rigidity hitherto observed in the acceptance of title for “ absolute ” registration, there seems much probability that applications for absolute title will be tolerably frequent also. A qualified title is only an absolute title minus a specified link in its chain of proof, which a purchaser may judge of and “chance it” if he likes, but the registrar will not be responsible. These are usually given where an application has been made for an absolute title, but such a title cannot be granted owing to some specific defect. Possibly a considerable number of these will also be entered on the books.

(0.) Gradual e.z'lens1'on ofcmnpul/ior_y i'e_qir{raf|'on area.——In 1878 it was estimated that about 1,000 deeds of the class that require registration in Middlesex and Yorkshire were executed daily in England, and the number is probably greater now. The practical difiiculty of providing an adequate staff and system to cope with such an influx of business from the first commencement of the Act, has for long formed one of the chief practical objections to a conipulsory scheme. Under the present Bill the difficulty is met by providing that compulsion shall only apply to areas specially named from time to time by Order in Council for the purpose.

Besides its fiist object, this provision will be useful in a variety of ways—(l) It viill enable the experiment to be tried, in the first instance, in the most favourable locality. (2) It will enable the ofilce to furnish itself beforehand with fl number of appliances (a complete index map of the district, for instance) the want of which has been felt in the existing registry, but which would have involved too great an outlay to provide for the whole island at once. (3) By beginning with a small area for the first district, and increasing that district until it shews signs of becoming inconveniently large, bcfore detaching branch ofllces, we shall learn the proper size for each district, and may find (if such be the case) that no division into districts will be necessary at all.

(zl.) Is registration to -remain compulsory ?—Tlie compulsion applied by the Bill does not appear to extend beyond the first registration, it being doubtless considered that the advantage of keeping up a registered title, once begun, will be sufilcient of itself to insure registration of future transfers. Should it be desired, very efficient protection can be obtained for private conveyancing with registered estates, and it is even open to argument that the newly-established insurance fund will be liable for losses where such protection fails. Suppose Whiteacre (at present unregistered)

is sold to A. B. We have already seen that, under section 2 of ‘the Bill, A. B., or someone on his behalf, must be registered as first proprietor. When a proprietor has been registered, however, it seems that section 2 has been exhaustively complied with, and ceases to have any operation. A. B. then conveys Whiteacre to C. D. by private deed. This deed, under section 40 of the Act 0! 1875, creates the same estate in C. D. as it would have done if the land were not registered; and, further, C. D. may protect the saino from being impaired by any act of A. B. by entering such caution as is mentioned in section 53. Such caution, by section 54, entitles C. D. to notice of all intended registered dealings—a form of protection which has never yet been known to fail, and which ppparently may be continued on behalf of C. D.’s successors in title for ever. The possible liability of the insurance fund, should loss occur to C. D., will be discussed when treating of the fund.

(e.) Practical of/eats upon nefct sales, _§~c.—The exact effect of the new system upon the practical details of sale and mortgage and lease and on the procedure for successions on death will depend so much upon the rules which will, presumably, be published under the Act, that they can only bc discussed in the barest outline now. Whatever procedure, however, is instituted, the trouble, delay, and expense involved on every_11e.zt sale_ must be somewhat increased, for there will be the same mvestigations of titlc as usual, and the correspondence with the registry besides. It will lllic useful to observe what possessory registrations cost under tl: present rules. It was thought, not unnaturally. l-bflt “"37 “'°“h cost next to nothing; but this has not always turned out to be t e

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THE $OLICITORS' JOURNAL April 9

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’ e — | 0 V from the printed notices now issued by the Land Registry that _ _ the minimum expenses (for estates of £100 value and under) will “ ]:'OR HER SE PARATL USE.”

be as follows:

£ s. d.

Ofiice fees—On registration—ad valorom . 0 2 6 Declaration—Revenue . . 0 2 6

Ofiice . . . 0 2 6

Stationer, “ a few shillings,” say 0 5 0 Maps-Tracing from ordnance map (minimum) 0 10 0 Sheet of ordnance map . . . 0 2 6 Solicitor . . . . . . . 2 2 0 Total £3 7 0

But these expenses may easily be exceeded. The two following cases are recorded as by no means exceptional (see Evidence, 1879, Nos. 1157 to 1163) :— For an estate worth £300, total costs, £18 12s. 6d. ,, ,, £105, ,, £16 ls. 9d.

These charges must be considered in relation to the minimum costs of private conveyancing under the present system. To take the highest authority, Lord Cairns says (Evidence, 1879, No. 2873): “In 1874 a number of solicitors shewed me that there was going on in various populous parts of England a transfer of very minute portions of land in very great quantities at a very small expense. Some had cut up land to build small houses for working people upon. It was known that they had satisfied themselves that there was a good title. Those pieces were bought with no investigation, and they made a charge, including every expense, to the purchasers, in some cases as low as 10s., and in a great many as low as 20s. Now, if to transactions of that kind you superadd a tax for registration, unless it is extremely small, you interpose a very great difficulty in dealings which we should be very sorry to interfere with or hamper in any way.” Also Lord Herschell, in the House of Lords, last week, emphasized the same point.

(f.) Will the public s/zars the ea:psnsc.?—Compulsion is introduced on the ground (stated by Lord Herschell in his speech on the Bill) that registration is no great benefit to existing landowners, but is required by the public for the benefit of the next generation. If this is so (and we do not propose now to discuss the point), it is plain that the public ought to pay as much of the expense as they possibly can. All the expense they can hardly arrange to pay,_as a large part will be incurred between landowners and their solicitors; but at least they can undertake that no ofiice fees shall be charged for compulsory registration, and can endeavour so to frame the regulations that as little trouble as possible shall be given to the landowner and his solicitor.

_ (_q.) Deeds will not be at once :uperseded.—I’ossessory registration gives no guarantee as to the previous title. Therefore, certainly on the first registration, and probably for a considerable time afterwards, it will be necessary to require the conveying party to execute a deed contaming such covenants for title as the grantee has_a right to demand. This will continue in all cases until the period of time which would be covered by the covenant in thc u_sual_ form is wholly posterior to the first registration, or until the titlc is “confirmed” under Part III., or registered as “absolute ” under the act of 1875. Save that, even then, unlcss and until the boundaries have also been declared “ conclusive " (Bill, clauses 13, 14), the like covenants will be required if the grantee wishes for the full protection that he now obtains under the private practice.

_ In framing these deeds of covenant, at any rate in the first instance, it will be well to beware of expressing them in any way that might be deemed to be a conveyance; for, if this were done,

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Aim the words which we have taken as the title of this article still to be inserted after a gift, limitation, or bequest to a married woman, or may they be omitted in reliance on the Married Women's Property Act, 1882? The practice of conveyancers has probably not been uniform ; but some at least of the most eminent members of the profession have rejected the words as surplusage since the commencement of that Act (Davidson, vol. 1, 5th ed., pp. 302, 356; Key & Elphinstone, vol. 2, 2nd ed., pp. 440, 666). We were certainly of opinion that “ separate property ” under the Act possessed all the qualities of “separate estate" according to the doctrines of equity, and that nothing was to be gained by retaining the words in question. The recent decision, however, of the Court of Appeal in Re Whitaker, Ohristian v. Whitaker (35 W. R. 217, 34 Ch. D. 227) throws considerable doubt on the propriety of relying too confidently on the statute; and, for reasons which we shall presently explain, seems to make it desirable, in all cases where property is given to a married woman, to state in express terms that it shall belong to her “ for her separate use.”

The facts of the case to which we have just referred may be stated in a very few words. By a marriage settlement, dated the 13th of January, 1873, the husband and wife coveuanted to settle the then existing and after-acquired property of the wife, with the exception of jewels, savings of her separate income, property not exceeding in each case the amount or value of £1,000, “ or any property belonging, or which may be given or bequeathed to or settled upon her for her separate use," all of which excepted articles and property were to belong to the wife as her separate estate. The wife's father, by his will, dated the 4th of March, 1884, bequeathed the sum of £50,000 in trust for his wife for life, and after her death for his five daughters in equal shares. But the will, which was made after the commencement of the Married Women's Property Act, 1882, contained no declaration that the daughters‘ shares were given to their separate uswan omission which, as we shall see, effectually altered the destination of the property. The testator being dead, the matter came before the court on originating summons, and the question to be decided was whether the sum of £10,000, one of the daughter’s shares, _wss bound by the above-mentioned covenant to settle after-acquired property, or whether that sum was excepted from its operation. Had the money been given in express terms to the separate use of the wife, it was conceded that it would not have been bound by the covenant; but as it was separate property owing 1" “separate” character to the operation of the statute, it was argued, and argued successfully, both before Vice-Chancellor Bacon and the Court of Appeal, that the money was not within the exception, and was bound by the settlement. _

The section of the Married \Vomen’s Property Act on which the court relied as producing this somewhat extraordinary result was the 19th, which enacts as follows :—“ Nothing in this Act contained shall interfere with or affect any settlement or agreement for a settlement made or to be made, whether before or after marriage, respecting the property of any married woman:" AB section 5 of the Act would have made the legacy in this_cfl80 separate property, and would consequently have altered the rilfihis of parties under the settlement, the court concluded that 880pion 19 prevented section 5 from operating upon the particular

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Loiid Justice Cotton, indeed, seems to have been of opinion that, even if the legacy were “ separate property " by virtue of the Act, it would not have been property “ given to her or settled to 11?! separate use " within the meaning of the covenant; but,_ 11-§ ll" learned brethren entertained some doubt on that point, 1115 W15’ ment was rested on the general point of law upon the statute, and not upon the construction of the particular covenant. T11? °°“' struction of the words of a particular instrument is unilI1P°mm in comparison with the decision on the meaning of B Seneral statute ; but the expression of the Lord J ustice’s opinion——tl1°‘1§h a mere dictum—cannot be disregarded by persons who 113'“ frame instruments that sooner or later may be subjected t° ins judicial criticism. “ The doubt, in my mind," said Lord Justice Cotton, “is whether ‘ given to her or settled to her separate life" does not mean ‘ given to her by the instrument toher separate useThat is to say, a distinction is to be drawn for p11l'P°'°° °f Gun.

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struction between separate estate exrpressly created by the instru- ipassedas the Married Women’s Property Act, 1882, it is quite, ment, and separate property arising under the statute. cle '

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.7 P statute, it is waste of logical acumen to apply a precise and minute closely the provisions of section 19, and pointing out the absurdities criticism to the phraseology which has been adopted. The inter- to which a literal interpretation of its language would lead, the

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applies equally to those which are executed after as to those ment which has a binding force on the property.”

4'-xccuted in contemplation of marriage. In all these cases tlze Act
is excluded la t/is sniallrsl cxlenl its efict would be to alter I/ie g

To give so extensive an interpretation to a saving clause as was
iven to section 19 by the Court of Appeal seems to us scarcely

provisions-_af' is seillmieizl. Let us test the principle by two or in accordance with the principle on which such clauses should be

three applications. c

onstrued. Moreover, to make the application of thc Act in any

First, suppose that the covenant to settle the after-acquired particular case depend upon the existence or non-existence of an
property of the wife was confined to a certain proportion thereof, instrument not dealing specifically with the fund in question
say one-half, and that property settled to her separate use was introduces a most inconvenient rule. Instead of first determining
excepted from the covenant. A legacy of £10,000 is left to the the construction of the covenant anrl allowing it to operate upon
wife without the words “to her separate use." Had there been property of a certain description, the Court of Appeal made the
no settlement she would have taken this money as her separate character of the property depend upon its destination under the
propfirpy, but as this would affect the provisions of the settlement, covenant. The practical effect of the decision is that the words

one- af must be paid to the trustees of the settlement and the “

other half to the husband absolutely. aft

Secondly, suppose that the covenant to settle after-acquired

for her separate use ” should be always added by the draftsman
er a gift, limitation, or bequest to a married woman.
It would have been more satisfactory if the Court of Appeal had

property is expressed to be that of the husband alone. But for the dealt with the difficulties suggested by Mr. Justice Chitty, and
3% he Wflllld be bound to settle the after-acquired personalty of expressly overruled his decision if they disagreed with it, instead

hlfl wife, and it would therefore seem that the existence of the of

puzzling posterity by suggesting a distinction between the cases,

usband s covenant would operate to divest the statutory title of when there is none in reality. This mode of treating inconsistent

the wife, and render her receipt for the money a inere nullity. de

cisions savours of intellectual cowardice; and, indeed, if we

Tlllrlily, suppose that the husband, after marriage, is desirous of may venture to say so, since the deaths of Lord Justice James and
Obtaining for his own purposes the expectant fortune of the wife. the late Master of the Rolls, the Court of Appeal N o. 2_ have
What is there to prevent him from executing a post-nuptial settle- seemed to us too often to shrink from the courageous enunciation of

ment, with or without the concurrence of his wife, containing a a

principle and to shelter their judgments behind the cloud of

covenant to settle an illusory share of her after-acquired property “ the facts of this particular case.”

llpon the trusts of the settlement ‘P The result of the rule of law
laid down by the Court of Appeal would be that, as this settlement
would beafiected by the Act, the operation of the Act must be
excluded, and the husband would take for his own benefit the
fruits of his ingenious device,

_ The Judges of the Court of Appeal generally prefer “substantial
Jlllllte " to inflexible principles of law; but it remains to be seen
whether, when such cases oi hardship as we have indicated arise PR
for their consideration, they will be able to shake themselves free
T0111 the fett/ers of the present decision Possibly the then presid-

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ent of the court may brush it on one -side as unceremoniously as sample. The defiendants, who were hop factors iii gondqnz ggnhopi
lord Justice Cotton treated Re Queadels Trusts (33 W R 8,6)_ to the plaintiffs for and on account of owner, e o n 8
a dec' '

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covenant of the husband alone. Those were the only whole case depended upon the evidence as to what the custom was. The

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