Page images



.... 879


378 381



409 412 404


410 411


effort to have the Bill passed into law this session, and we refer is the question of control. conveyancers, and to the Council of the Incorporated Law Society it must be admitted that that plan is the best which provides as


provided (section 111) that the Lord Chancellor might, with the In the Solicitors' Journal. Unwin v. Buck

advice and assistance of the registrars, make, rescind, or add to Yorkshire Railway Co.v. Mullan.. 379 general rules in respect of (inter alia).“ the costs to be charged by Albert Palace Association, Re

In the Weekly Reporter. Blakey v. Hall

solicitors or certificated conveyancers in or incidental to or conseBurrows v. Holley

Bagley v. Searle

404 quential on the registration of land,” but this section is proposed Campbell v. Campbell ..


Bevan's Trusts, In re
Christchurch Inclosure Act, Re

Burr v. Wimbledon Local Board.. 404

409 to be repealed by the Bill; and clause 29 enables the Lorů Eden y. The Weardale Coal and

Cookes y Cookes

402 Chancellor, by order, to make, rescind, and amend rules in Iron Co.

De Jongh v. Newman Elkington v. Frazer

Furber v. Cobb

393 respect of (inter alia) (8) “the costs and fees to be charged in Gee v. Bell Gibson v. Wise

or incidental to or consequential on the registration of land, or any Leslie v. Cave...

"J.H. Henkes,” The Pike, Sons, & Co. v. Ongley and Law v, Philby

other matter required to be done for the purpose of carrying the Thornton

377 Osborne v. Milman Sion College, Re. Ex parte The Pass, Id re...

397 principal Act into execution, with power to require those costs and Corporation of London

Reg. v. Gibson.. St. Botolph Without Bishopsgate

fees to be payable by commission, percentage, or otherwise, and to Swain v. Follows Parish Estate, Re..

Wylson v. Dunn

408 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 The Solicitors' Journal and Reporter. and paid.” It will be remembered that the Remuneration Order

(clause 1) expressly provides that the scale in Schedule I. “ shall LONDON, APRIL 9, 1887.

not apply to transactions respecting real property, the title to

which has been registered under” the Land Transfer Act, 1875; CURRENT TOPICS.

and the result appears to be that, while the Legislature has

provided a “ tribunal,” on which solicitors are represented, to preTHE ACCUMULATION of arrears in Mr. Justice Chitty's Chambers scribe and regulate their remuneration in respect of business connecessitated his devoting two whole days this week to disposing of nected with dealings with land, the Bill proposes to place such summonses adjourned by his chief clerks to be heard before him in remuneration ultimately at the absolute discretion of the Lord person, and the consequence has been that the learned judge has Chancellor for the time being. What is intended with regard to not sat in court since Saturday last.

the remuneration on first registration of land ? 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 Land Transfer Bill is understood to have been prepared the registry? This would unquestionably be fair. Or is it by the Government draftsman, but the Lord Chancellor, in his intended, when the practice becomes fixed, that a scale shall be speech in introducing the Bill, took occasion to mention that he added to the Remuneration Order for this class of work ? had been much indebted to Mr. H. W. ELPHINSTONE for his assist- And what is to be the rule in registrations subsequent ance in revising the real property clauses of the Bill.

for the heat is to me point cute elsewhere in the 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 WE DREW ATTENTION in our issue of the 26th of March to a been acquired; how is the remuneration for these to be dealt with, question raised in the Croydon County Court as to whether debt and how is the investigation of title prior to registration to be collectors and agents were entitled to audience in that court. We remunerated ? are informed that Judge LUSHINGTON gave his decision on the point on Tuesday, the effect of which will be to exclude unqualified practitioners from audience. We trust that this good example SOME MEASURES are, it is understood, being taken with a view of will be followed in all the other county courts.

ascertaining whether the fourth resolution of the Lord Chancellor's Committee on the courts and chambers of the Chancery Division, and the distribution of the clerical staff, can be usefully carried

'(4) That the whole adSupreme Court on Monday the proposed alterations in the present ministrative staff of the Chancery Division in London shall

prese UNDERSTOOD that at a meeting of the judges of the out. That resolution is as follows : – mode of holding the assizes were considered, and that, as a result eventually be brought under the control of the several Chancery of the discussion, it is contemplated that there shall be there areinet judges, by attaching to each judge a sufficient number of clerks to begin in February instead of January as at present. It is expected to be made by the judges of the Chancery Division.". Already a bepalingen to each asize town, and that the winter circuits shall drawing of orders and taxing costs ; the duties of such clerks and

the distribution of business among them to be determined by rules that the changes will come into operation at the next summer scheme for amalgamation of the registrars' and chief clerks' depart

ments has been concocted by a gentleman who has some acquainttory of the provisions of the Lord Chancellor's Land i han step bna. that the matter is to be investigated on official authority.

STY A MOTHER COLUMN ne commence a series of articles explana- perience has thrown cold water on the scheme. It is now stated We have reason to suppose that it is intended to make a vigorous

The first point which strikes us on reading the resolution

Each of the chief clerks is eleewhere to some considerations which seem to render such a

under the control of the judge to whom he is attached; and we oferult possible ; but in the present state of matters in the sucluse never heard that either the registrars or the taxing masters failed die Commons he would be a bold man who would confidently pre to acknowledge themselves amenable to the directions of any judge Wo kapet business which must necessarily a les procedere debere the intention is that each judge shall have a certain number of officials the searcing Act has been followed on the present research one, and by the chief clerks and by the taxing masters. Apart from the for the purpose of criticism and suggestion.

nearly as may be for uniformity of practice in the work done by these officers. The facts that the registrars attend in rotation on

all the judges of the Chancery Division, and that the taxing See the IMPORTANT RESPECT solicitors are as yet in the dark siosenfor something Hike a guarantee that, when the benefit of their remuneration in respect of dealing with fand Pafter the the business transacted by those who receive that benefit will their the effect of the Land Transfer Bill. What is proposed as to the wayer and opinions of all the judges is so evenly distributed, system of registration has become compulsory? The Act of 1875 l be done on

uniform plan. Any scheme which should



make such a radical alteration as that suggested by the resolution would require careful study, and the Council of the Incorporated

THE LAND TRANSFER BILL. 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 The portion of the Chancellor's Bill that will be most immediately or extra expense, or what other form they take ; and when this interesting to the professional lawyer will no doubt be that has been ascertained, the opinion of those experts who are most relating to land transfer proper. The abolition of primogeniture familiar with the working of the present system, and who may be and estates tail, though involving care and research on the part of supposed to be best acquainted with its faults, should be called in the draftsman, are questions of little more than yes or no to the to aid in devising such alterations as may be absolutely necessary. legislator. With respect to them it may fairly be said that the We may add, with great respect to the framers of the resolution only point ever doubted was whether the public desired the change : referred to, that they are not the experts qualified to deal with as soon as this is found to be the case, there is no serious legislathis matter.

tive 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 WE REPORTED a fortnight ago (ante, p. 348) a case of In the land may now be expected to take. The abolition of primogeniture Goods of Price, in which, on the 22nd of March last, Mr. Justice will doubtless prevent much hardship to many individuals, but Butt laid down a new rule as to grant of probate of the will of will scarcely raise any legal questions of more than microscopic a married woman; but the decision does not appear to have reached interest. The clauses relating to the real representative may or the Times law reporters until Wednesday last, and the case was may not contain the germs of a number of originating summonses, gravely reported on Thursday without date. According to Mr. but there the matter will probably end. Justice Burt's decision (which is understood to have been given When we turn, however, to the question of improving land after consultation with the registrars and with the concurrence of Sir transfer by establishing registration of title, we come upon a subject JAMES HANNEN) probate is in future to be granted of a will whereby which is in exactly the opposite predicament to the preceding ones. a married woman disposes of her separate property in the ordinary There is a general agreement among the public that it is wanted ; form, and without the words of limitation hitherto used. The the only doubt is whether any given machinery will suffice to effect learned judge based his decision on the “policy of recent legis- the desired object. The three Lord Chancellors who spoke in the lation having been to place a married woman, so far as her separate House of Lords on the first reading of the present Bill were all estate is concerned, in the position of a feme sole,but in the agreed that the Land Transfer Act of 1875 established a system judgment in Scammell v. Wilkinson (2 East, at p. 558) there which only failed because its adoption was voluntary. If this is might have been found another ground for the new rule. indeed so, the present Bill, which makes the adoption of that LAWRENCE, J.,


“In this case it appears that the system compulsory, is certain to succeed. Prerogative Court is applied to to grant a probate which will give But this does not entirely dispose of the case. For, without to a will made by a married woman during her coverture the effect going so far as to throw doubt on a proposition so strongly supof a will made during widowhood and discoverture. And it is ported by authority, it may be fairly remarked that there are not impossible but that the Ecclesiastical Court may in this case degrees even in success. And therefore, by way of helping to grant such probate, for by the civil law a feme covert might make secure the largest amount of success possible, we propose to discuss a will, and so she might by the canon law.” Most people will in this and succeeding numbers a few points in the Bill which concur in Mr. Justice Burt's observation that he had never been appear to present suitable matter for quiet inquiry. We are the able to understand the necessity, even before the recent legislation, more inclined to this course in that the broad antecedent questions for the old form of limited grant.

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 fully

discussed, both in these columns and elsewhere, that we could IN THE COUnse of his speech in introducing the Land Transfer hardly feel justified in inflicting on our readers a fresh dissertation Bill, the Lord Chancellor referred to the difficulty by which he on so stale a subject. had at first been greatly pressed, as to whether it was possible to give a title which should include the boundaries of the registered chances the present Bill, or any particular portion of it, has, or

Without intending to discuss the momentous question as to what land, and he said : "On that question my views have been con- has not, of becoming law’in this or any future session of Parlia. siderably modified by what I have learnt since. I have heard with ment, it may nevertheless be as well to observe that, though its great surprise that there exists at the present moment a register in compulsory clauses will probably be opposed by an influential which every yard of land in this country has been registered by a portion of the legal profession, it is, at any rate, quite possible that Land Tax Commissioners have a register of every yard of land in A Conservative Lord Chancellor, possessed of a strong determination, this country, and it has been formed with a degree of accuracy supported in the main by two Liberal lords who have occupied the and precision tha to me is absolutely astonishing. The com- woolsack, is not likely to meet with insurmountable obstacles in missioners have, from time to time, without expense to anybody, the House of Lords; and, when the Bill appears in the Commons; been called upon constantly to decide questions of adjoining we shall probably have reason to admire the wisdom which included boundaries. "That system exists in every county of England. i the abolition of primogeniture and estates tail in a measure entitled think there are 380 land tax districts in England in which that " Land Transfer Bill." It will be welcomed by the Liberals (at system exists.” It may probably be presumed that this indicates least as an instalment), and with no other regret than that it comes a contemplated alteration in the public map” to be used for the from the wrong side? Thus the only opposition to fear will be purposes of registration. The rules under the Land Transfer Act, that of pure obstruction. But the examples of the Conveyancing 1875 (rule 50), prescribe the ordnance map on the 25-inch scale, Acts and the Settled Land Acts are enough to shew that the or, if there is no such map, the map under the Inclosure Act, 1845, progress of a purely legal enactment (provided its promoters are or, in default thereof, the tithe map as the public map of the land, in earnest) which is not offensive to the genuine opposition is not but enable the registrar at any time to declare that any map shall much retarded by the prevalence of obstructive tactics generally. be deemed a public map for the purposes of registration.

We venture to put these considerations before our readers because

we think that, if borne in mind, they may exert a useful influence on in the several county courts having barik rupede jurisdictions in england on the subject, so popular"a suggestion as compulsory registration

A return shewing the number of receiving orders in the High Court, and be expected, for instance, that, in the present temper of the publie 1886, 1885, and 1881, is published in Tuesday's Gazeite. The numbers sion, however strong; while it may be expected with some ils to 1886, 1,236; quarter ended March 31, 11895, Lanterana dqda Marcen died fidence that the suggescions of the profession as to the details to March 31, 1884, 700.

be observed in carrying it out, if it be passed, will meet with that

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

full attention which they undoubtedly deserve. If such sugges- resorted to, as being the cheapest. No examination of title is tions are given temperately and received considerately, we may as made by the registrar, but he only gives a guarantee as to subs well frankly admit, at starting, that we see no reason why the quent dealings. Therefore it is not of very great value until it is measure should not fulfil all the reasonable expectations of its either "confirmed” under the present Bill, or a sufficient time has originator and supporters.

elapsed to render the anterior title uninteresting to purchasers. We shall proceed, therefore, on the assumption that the Bill will (Confirmation will be treated in our next issue.) But should it be pass, substantially unaltered, at an early date.

found possible (as is not unlikely, now that an insurance fund is

to be established) to relax some of the rigidity hitherto observed As To LAND TRANSFER.

in the acceptance of title for “absolute” registration, there seems The Bill makes three substantial additions to the Act of 1875, much probability that applications for absolute title will be tolerand introduces one important administrative change.

ably frequent also. A qualified title is only an absolute title The additions are :

minus a specified link in its chain of proof, which a purchaser (1) The compulsory clauses and ancillary provisions.

may judge of and “chance it” if he likes, but the registrar will (2) " Confirmation" of possessory titles after due notice and the not be responsible. These are usually given where an application lapse of five years.

has been made for an absolute title, but such a title cannot be (3) The insurance fund.

granted owing to some specific defect. Possibly a considerable The administrative change is :

number of these will also be entered on the books. (4) The Land Transfer Board, regulated by Orders in Council. (c.) Gradual extension of compulsory registration area.In 1878

These four points will be considered in their order, and then it was estimated that about 1,000 deeds of the class that require some observations will be added on the Land Transfer Act of 1875, registration in Middlesex and Yorkshire were executed daily in to which the Bill is supplemental, and to which it gives a greatly- England, and the number is probably greater now. The practical increased importance.

difficulty of providing an adequate staff and system to cope with

such an influx of business from the first commencement of the Act, (1)—THE COMPULSORY CLAUSES.

has for long formed one of the chief practical objections to a com(a.). Can they be evaded ?-It used to be doubted by high pulsory scheme. Under the present 'Bill the difficulty is met by authorities whether it would be possible to frame a compulsory providing that compulsion shall only apply to areas specially named clause that would not be evaded." Lord Cairns says, as late as from time to time by Order in Council for the purpose.. 1879, “ No way that has yet been proposed would have the effect

Besides its first object, this provision will be useful in a variety of making it compulsory to put land upon the register” (Evidence of ways—(1) It will enable the experiment to be tried, in the to Mr. O. Morgan's Committee, 1879, No. 2871). The clause in first instance, in the most favo!ırable locality. (2) It will enable Lord Selborne's Bill of 1874 (clause 27) was as follows :-"When the office to furnish itself beforehand with a number of appliances there is a sale of land in fee simple, there not being already a (a complete index map of the district, for instance) the want of registered proprietor, some person shall be registered as proprietor, which has been felt in the existing registry, but which would have and any conveyance shall, until registration, operate in equity involved too great an outlay to provide for the whole island at once. only, and not be effectual at law to pass the legal estate."

Of (3) By beginning with a small area for the first district, and inthis, Lord Cairns says, “ Lord Selborne's proposal was no doubt creasing that district until it shews signs of becoming inconthe best that the case admitted of,

but, unfortunately, veniently large, before detaching branch offices, we shall learn the the Judicature Act knocked on the head, for all practical purposes, proper size for each district, and may find (if such be the case) that the distinction between the equitable and legal estate; and a man

no division into districts will be necessary at all.
with an equitable estate was practically as well off as a man with (d.) Is registration to remain compulsory ?—The compuleion
a legal estate” (Evidence, 1879, No. 2872). It may be doubted, applied by the Bill does not appear to extend beyond the first
however, whether this latter statement was absolutely correct; in registration, it being doubtless considered that the advantage of
cases of tacking, for instance, “the law” will still prevail. keeping up a registered title, once begun, will be sufficient of itself

In the present Bill the form is much stronger. “ Until a pro- to insure registration of future transfers. Should it be desired,
has been registered, a conveyance

shall very efficient protection can be obtained for private conveyancing operate only as a contract, and not convey to any person with registered estates, and it is even open to argument that the any legal estate in the land, nor "render him capable of taking newly-established insurance fund will be liable for losses where any benefit from, or exercising or creating any legal right in, or such protection fails. Suppose Whiteacre (at present unregistered) oferor upon land, nor confer on him any equitable right in respect is sold to A. B. We have already seen that, under section 2 of of the land except the right of enforcing the contract. This is the Bill, A. B., or someone on his behalf, must be registered as the part applicable to conveyances of freeholds, including mort- first proprietor. When a proprietor has been registered, however, gages. There are similar provisions as to leaseholds and as to it seems that section 2 has been exhaustively complied with, and transmissions on death.

ceases to have any operation. A. B. then conreys Whiteacre to We will not pretend to say whether or not, at the instance of C. D. by private deed. This deed, under section 49 of the Act of some determined settlor perhaps, a mode of 'circumventing this 1875, creates the same estate in C. D. as it would have done if the danse may some day be devised (like the lease and release which land were not registered ; and, further, C. D. may protect the same appear that the objections of the great body of landowners to as is mentioned in section 53. Such caution, by section 54, entitles registration must be far greater than they are now before they are C. D. to notice of all intended registered dealings--a form of protroubles which this formidable clause would raise for them. The parently may be continued on behalf of C. D.'s successors in title words we have italicised would prevent the unregistered purchaser for ever.

The possible liability of the insurance fund, should loss an efficient mortgage or lease, or bringing any occur to C. D., will be discussed when treating of the fund. damages in respect of injury to the property, and there might the new system upon the practical details of sale and mortgage

mikestringency of this clause brings with it the following so much upon the rules which will, presumably, be published Spolequence-namely, that every person who, under the present under the Act, that they can only be discussed in the barest outline e purely stated in the Bill, however. But perhaps it does not increased, for there will be the same investigations of title as usual, explehave power to demand registration. This is nowhere delay, and expense involved on every next sale must be somewhat

What sort of registration will be enforced ?-The landowner aneluth to cobrepor debat portesore registrations cost under the fied, stablished by the Land Transfer Aete namely, at solate, gintaro postene tute nothing is blue this has not away s'turhat out to be the fied, or possessory. Probably at first the latter will be chiefly case. To take, first, the minimum costs possible. It appears,

= Bill

We are

[ocr errors]
[blocks in formation]
[ocr errors]


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

from granting

[ocr errors]







or any

from the printed notices now issued by the Land Registry, that the minimum expenses (for estates of £100 value and under) will

“ FOR HER SEPARATE USE." be as follows:

ARE the words which we have taken as the title of this article £ 8. d.

still to be inserted after a gift, limitation, or bequest to a married Office fees—On registration-ad valorem

0 2 6

woman, or may they be omitted in reliance on the Married Declaration-Revenue

0 6

Women's Property Act, 1882 ? The practice of conveyancers has Office

0 6

probably not been uniform ; but some at least of the most eminent Stationer, “a few shillings,” say 0 5 0

members of the profession have rejected the words as surplusage Maps— Tracing from ordnance map (minimum) 0 10 0 since the commencement of that Act (Davidson, vol. 1, 5th ed., Sheet of ordnance map


pp. 302, 356; Key & Elphinstone, vol. 2, 2nd ed., pp. 440, 666). Solicitor

2 2 0

We were certainly of opinion that "separate property" under the

Act possessed all the qualities of " separate estate” according to Total £3 7

the doctrines of equity, and that nothing was to be gained by But these expenses may easily be exceeded. The two following retaining the words in question. The recent decision, however, of cases are recorded as by no means exceptional (see Evidence, 1879, the Court of Appeal in Re Whitaker, Christian v. Whitaker (35 Nos. 1157 to 1163) :

W. R. 217, 34 Ch. D. 227) throws considerable doubt on the For an estate worth £300, total costs, £18 12s. 6d. propriety of relying too confidently on the statute ; and, for


£16 18. 9d. reasons which we shall presently explain, seems to make it desirThese charges must be considered in relation to the minimum costs able, in all cases where property is given to a married woman, to of private conveyancing under the present system. To take the state in express terms that it shall belong to her " for her separate highest authority, Lord Cairns says (Evidence, 1879, No. 2873): “In 1874 a number of solicitors shewed me that there was going stated in a very few words. By a marriage settlement, dated the

The facts of the case to which we have just referred may be on in various populous parts of England a transfer of very minute 13th of January, 1873, the husband and wife covenanted to settle portions of land in very great quantities at a very Some had cut up land to build small houses for working people the then existing and after-acquired property of the wife, with the upon. It was known that they had satisfied themselves that there exception of jewels, savings of her separate income, property not was a good title. Those pieces were bought with no investiga- exceeding in each case the amount or value of £1,000, tion, and they made a charge, including every expense, to the property belonging, or which may be given or bequeathed to or purchasers, in some cases as low as 10s., and in a great many as

settled upon her for her separate use," all of which excepted articles low as 208. Now, if to transactions of that kind you superadd a tax The wife's father, by his will, dated the 4th of March, 1884,

and property were to belong to the wife as her separate estate. for registration, unless it is extremely small, you interpose a very great difficulty in dealings which we should be very sorry to in- bequeathed the sum of £50,000' in trust for his wife for life, and terfere with or hamper in any way.” Also Lord Herschell, in the after her death for his five daughters in equal shares. But the House of Lords, last week, emphasized the same point.

will, which was made after the commencement of the Married (f.) Will the public share the expense ?—Compulsion is intro- Women's Property Act, 1882, contained no declaration that duced on the ground (stated by Lord Herschell in his speech on sion which, as we shall see, effectually altered the destination of

the daughters' shares were given to their separate use--an omisthe Bill) that registration is no great benefit to existing landowners, but is required by the public for the benefit of the next the property. The testator being dead, the matter came before the generation. If this is so (and we do not propose now to discuss court on originating summons, and the question to be decided was the point), it is plain that the public ought to pay as much of the whether the sum of £10,000, one of the daughter's shares, was expense as they possibly can. All the expense they can hardly

bound by the above-mentioned covenant to settle after-acquired arrange to pay, as a large part will be incurred between land property, or whether that sum was excepted from its operation. owners and their solicitors ; but at least they can undertake that the wife, it was conceded that it would not have been bound by

Had the money been given in express terms to the separate use of no office fees shall be charged for compulsory registration, and can endeavour so to frame the regulations that as little trouble as

the covenant; but as it was separate property owing its possible shall be given to the landowner and his solicitor.

"separate character to the operation of the statute, it was (9.) Deeds will not be at once superseded. — Possessory registration argued, and argued successfully, both before Vice-Chancellor Bacon gives no guarantee as to the previous title. Therefore, certainly and the Court of Appeal, that the money was not within the excepon the first registration, and probably for a considerable time after- tion, and was bound by the settlement. wards, it will be necessary to require the conveying party to

The section of the Married Women's Property Act on which the execute a deed containing such covenants for title as the grantee court relied as producing this somewhat extraordinary result was has a right to demand. This will continue in all cases until the the 19th, which enacts as follows :—"Nothing in this Act con: period of time which would be covered by the covenant in the tained shall interfere with or affect any settlement or agreement usual form is wholly posterior to the first registration, or until the for a settlement made or to be made, whether before or, after title is a confirmed " under Part III., or registered as "absolute” marriage, respecting the property of any married woman:" As under the Act of 1875. Save that, even then, unless and until section 5 of the Act would have made the legacy in this case the boundaries have also been declared conclusive" (Bill, clauses separate property, and would consequently have altered the rights 13, 14), the like covenants will be required if the grantee wishes for of parties under the settlement, the court concluded that secthe full protection that he now obtains under the private practice.

tion 19 prevented section 5 from operating upon the particular In framing these deeds of covenant, at any rate in the first legacy, that might be deemed to be a conveyance ; for, if this were done, in erould not have been property-given to her or settled to this

Lord Justice Cotton, indeed, seems to have been of opinion that,

separate property” by virtue of the Act, questions might arise on taxation under clause 2, sub-section (a.), of the Bill.

separate use within the meaning of the covenant ; but, as his learned brethren entertained some doubt on that point, his judg;

ment was rested on the general point of law upon the statute, and Thursday, April 7, at 10.30 Wednesday, April 13, at 11; Friday, Aprīt ihr compariboth with the decision on the meaning of a mouth

not upon the construction of the particular covenant. The con:

struction of the words of a particular instrument is unimportant 15, at 10.30; Monday, April 18, at 10.30. in practice at the bar entertained Lord Macnaghtencentes accomplimentary a mere dictum—cannot be disregarded by persons who have his dinner upon the occasion of his recent appointment. His moralinip, ten frame instruments that sooner or later may be subjected to this bracketted Senior Classic, and was Chancelloroso Medallist and a senior Cotton, is whether given to her or settled to her separate use optime in the Mathematical Tripos. The dinner was given at the Hotel does not mean given to her by the instrument to her separate user spektropole, and the Attorney-General, Sir R. E. Webster, Q. c., M.P., a heat is to say, a distinction is to be drawn for purposes of cc1


[ocr errors]

was in the chair.

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

377 struction between separate estate expressly created by the instru- passed as the Married Women's Property Act, 1882, it is quite ment, and separate property arising under the statute.

clear that the fund in court would have been bound by the settleThe fact that an acute and learned judge should have paused for ment. But the title of the wife to the fund accrued after the a moment on such a subtlety is sufficient reason for a conveyancer commencement of the Act; and, consequently, primâ facie, section not to rely upon the operation of an Act which seems intentionally 5 applies ; and the petitioner says, and rightly says, that she is to adopt as great a variation of phrase as the resources of the entitled, by virtue of that section, to take the fund as her separate language can supply. This we find within the narrow limits of this property. Then comes section 19, and the language of section 19, Act"separate property” used twenty-two times; "her own separate I may observe, is not very easy to deal with. But there are property” once; "a woman's own property

once ;

separate some things which are clear on the face of the section. The first estate" three times; and "separate use" three times; all these observation is that the section is, in substance, a qualification of expressions, be it observed, denoting the same thing. Surely, the Act, and the material part of the Act to which it appears to be when such heedlessness is discoverable on a cursory perusal of the a qualification is section 5 itself.” After examining somewhat 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 pbraseology which has been adopted. The inter- to which a literal interpretation of its language would lead, the preting tribunal should rather, we think, extend to the Legis- learned judge suggested the following limitation to the scope of lature the same charitable indulgence as to an illiterate testator, this difficult section :-“It appears to me,” he said, “that the and endeavour, amid the mazes of language, to ascertain its words “respecting the property of any married woman' should general intention.

properly be read as a settlement or agreement which affects Passing, however, to the point of law decided in this case, we legally or equitably the property, and not merely one that concerns must observe that it affects future as well as past settlements, and or relates to the property, and as being some settlement or agreeapplies equally to those which are executed after as to those ment which has a binding force on the property.” executed in contemplation of marriage. In all these cases the Act To give so extensive an interpretation to a saving clause as was is excluded if to the smallest extent its effect would be to alter the given to section 19 by the Court of Appeal seems to 'us scarcely provisions of a settlement. Let us test the principle by two or in accordance with the principle on which such clauses should be three applications.

construed. Moreover, to make the application of the 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 and 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 property, but as this would affect the provisions of the settlement, covenant. The practical effect of the decision is that the words one-half must be paid to the trustees of the settlement and the " for her separate use” should be always added by the draftsman other half to the husband absolutely.

after a gift, limitation, or bequest to a married woman. Secondly, suppose that the covenant to settle after-acquired It would have been more satisfactory if the Court of Appeal had property is expressed be that of the husband alone. But for the dealt with the difficulties suggested by Mr. Justice Chitty, and Act he would be bound to settle the after-acquired personalty of expressly overruled his decision if they disagreed with it, instead his wife, and it would therefore seem that the existence of the of puzzling posterity by suggesting a distinction between the cases, husband'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 mere nullity. decisions savours of intellectual cowardice; and, indeed, if we

Thirdly, 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 No. 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.”
upon the trusts of the settlement ? The result of the rule of law
laid down by the Court of Appeal would be that, as this settlement
would be affected 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 PIKE, SONS, & CO. v. ONGLEY AND THORNTON—C. A. No. 1,
justice” to inflexible principles of law; but it remains to be seen
whether, when such cases of hardship as we have indicated arise Principal and Agent—SALE for and on Account of Owner–Custom
for their consideration, they will be able to shake themselves free

OF TRADE TO MAKE AGENT LIAPLE-ADMISSIBILITY OF EVIDENCE OF. from the fetters of the present decision. Possibly the then presidet alf the court may brush it on one side as unceremoniously a5 sample. The defendants, who were hop factors in London, sold the hops I died Justice Cotton treated Re Queade's Trusts (83 w. R. 818) as to the plaintiffs" for and on account of owner," the contract being in a decision of Mr. Justice Chitty absolutely irreconcileable in prin- plaintiffs, at the trial, gave evidence that there was a custom in the hop ciple with Re Whitaker. Lord Justice Cotton is reported to have market, upon a sale of hops by a broker, that if the name of the principal ehid : "It is unnecessary to consider Re queade's Trusts, because is not disclosed, either at the time when the contract is made or on the that particular question does not arise now, and any opinion one

face of the contract, the broker is personally liable. Manisty, J., admitted might give would be extra judicial.” Of course, the particular judgment was given for the plaintifa. The Divisional Court (Day and question." did not arise, because the court was not hearing an wilis, sut, Whela that this evidence of custom was inconsistent with the appeal in Re Queade's Trusts, but the questions in the two cases

written contract, and gave judgment for the defendants (see ante, p. Were; in principle, the same, and the two decisions cannot possibly Q. B. 128), Humfrey v. Dale 15 W. R. 466, 7 E. & B. 266; in Exch, Chi

365). The plaintiffs appealed, and cited Fleet v. Murton (20 W. R. 97, stand together. In Re Queade's Trusts the settlement was post-TW.BR. 351, E.B. & E. 1004), and Hutchinson v. Tatham (22 W. R. 18, nuptial, and, the wife having been an infant at the date of the 8 C. P. 482).

The Court allowed the appeal. Lord ESHER, M R., said that the po te the covenant of the husband alone. guirhose rompere the only whole case depended upon the evidence as to what the points in which the facts before Mr. Justice Chitty differed from that ra, o nasucha contract as this, the name of the principal were not given, cerned, these differences are non-essentialet The Tearned judge, the person dealing with the "broker had the right to treat the broker as me expressly grounded his decision on the Construction in the principal. If the name of the principal Here "disclosed subsequently, the him. The following observations occur in the course of the judg- en rent veiem ene Written tontract, as it would not relieve a person liable ment in this case : "If no such Actinof Parliament had been sistente met botter aceit terhe catentes herefore governede ng the peases cited,

operate rate de

bored wwing

lor het


[ocr errors]
« PreviousContinue »