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Alimrd v. Skinner ..... 4l4
The Solicitors’ journal and Reporter.
LONDON, APRIL I6, I887.
_A_r THE min of going to press the cause lists for the Easter Sittings of the court, commencing on Tuesday next, are not published. The appeals will number about 170, and the causes and matters before the five judges of the Chancery Division will aggregate a total of upvi ards of 700.
Tun srrunrioiv of solicitors practising in the county of Lancaster should be directed to the order of the Lord Chancellor, which will be found in _a_nothei- column, under which all causes in the Chancery Division commenced in either of the district registries of kiwi-pool or llanchesten are to be marked for Mr. Justice
lEKE.WI(IH- This order is made under the powers of the new cause of rule 9 of order 5 of the Rules of the Supreme Court, $111011 was added by the ltules of December, 1886 (mite, p. 140).
_v ord._ 85, r. 6a, the district registrar of each of the places above Rpmed is_to act as chief clerk, registrar, and taxing master, so that
r. Justice Knarwron will in efiect have the control of a large fiinount of chamber business which will be transacted, not under
18 OWI1 eye m London, but at Liverpool and Manchester. The Eelléml efl’ect_ of the new order will be to give to suitors who gommencc their actions in the district registries of Manchester and
]1l"e1'P00l something yery nearly approaching to a preference over B _u°th°1‘ Chancery suitors. It is obvious that Mr. Justice Krinzwicii if" flitera time be almost exclusively employed in trying cases
rom Lancashire, which would otherwise have been distributed €m°nS the five judges of the Chancery Division. So long as he hf; $117 LBllC8sl1l1‘6 cases to try, he will never be in need of a km‘ °l'- It may well be that the cases so marked for Mr. Justice
.u "3“'1°t1I Will take away ‘a suflicient number from the other ihegeifll the Chancery Division so as to have the same effect upon hut M11: as the exercise of the right of transfer would have had, KEKEW 6 other_hand there is a possibility that while Mr. Justice dye r lmd“ trying heavy cases his four colleagues will be getting theP°Lo 1:111 Cdeeper into arrear. This may have been foreseen by mums I hancellor, and it may be that the present new arrangeChauce °“5'_3_B_t9P towards the appointment of another judge of the can on1’Yb ilrision. Whether this be so or not, the new departure which 3;) ‘E °°k9d upon as an experiment, the beneficial result of mostlikel hanceiy suitors at large, is doubtful, and which will mto" why Wests jealousies m the minds of the large majority of more ta ose cases ar_e to be practically postponed to those of their
Wired competitors for a hearing.
solicitor, the lessor being entitled to be recouped the costs by the lessee ( G1-issell v. Robinson, 3 Bing. N. C. 10). The obligation of the husband,thereforc, did not rest on any liability on his part for his wife’s ante-nuptial debts, but on the “usage” that he should indemnify anyone, whether the wife, or her parent, or a person in loco parantia, who incurred the costs of the settlement. As a matter of fact, this “ usage,” on which the husband's liability depends, remains unaltered, and as the Married Woinen’s Property Act, 1882, does not “interfere with or affect any settlement” (section 10), there seems to be no alteration effected by the Act which could remove the grounds on which this usage was originally established. It could not have been based on the fact that the law gave the husband an interest in the property of his wife, for the object of the settlement was, of course, in all cases to exclude and vary this legal right.
Ws iinroiir elsewhere the judgment delivered by Judge LusaINGTON at the Croydon County Court on the 5th inst., laying down the rule that in future unqualified paid agents are not to be allowed to appear or address the" court. The judgment deals ably and exhaustively with the subject, and we trust that its effect will be to induce the other oounty court judges throughout the country to place a similar check on an abuse which of late years has been rapidly growing. It may be useful to subjoin a note of the statutory provisions bearing on the subject: Solicitors Act, 1843 (6 & 7 Vict. c. 73, ss. 2, 36). Unqualified persons act in contravention of these sections and commit a contempt of court. Solicitors Act, 1860 (23 & 24 Vict. c. 127, s. 26). Unqualified persons act in contravention of this section and commit a contempt of court and incur a penalty. Stamp Act, 1870 (33 & 34 Vict. c. 97, s. 59). Unqualified persons act in contravention of this section and incur a penalty. See also section 60, in contravention whereof these persons draw aflidavits, &c. County Courts Act, 1850 (13 & 14 Vict. c. 61, s. 10), refers to appearance “by himself or his attorney.” County Courts Act, 1852 (15 & 1,6 Vict. c. 54, s. 10), as to who may appear in a county court. It seems clear that the “ leave of the judge ” should be a special permission in each particular case, and ought not to be given to enable a person to infringe an Act of Parliament, or to incur penalties, or to commit a contempt of court. County Courts Act, 1867 (30 & 31 Vict. c. 142, s. 16), refers to appearance of defendant either in person or by some person “duly authorized” on his behalf. This “duly authorized ” person must surely be either a solicitor or a barrister, or some person who has obtained leave from the judge. See also section 17, which refers to appearance “ in person or by some person duly authorized to appear for him." County Courts (Costs and Salaries) Act, 1882 (45 & 46 Vict. c. 57, s. 2). “No person other than a solicitor shall be entitled to have or recover any fee or reward for appearing or acting on behalf of any other party in any proceedings in a county court."
Tun cuss or Re C’coIce’s Estate, which we report in another column, has brought to light one of the many unsettled questions with which our law abounds. So long ago as 1800 it was decided by Lord Ennon, at Nisi Priue (Mala _v. Roberts, 3 Esp. 163), that the capacity of a person to bind himself by contract must be decided by the law of the country where the contract anses. The subsequent cases bearing upon the point have been very few, Q19 chief authority being a dictum of Sir Cnasswsnn Cassswsm. in Simonin v. Maillac (1 Sw. & Tr. 25_3)_that “Ill 39118781 the personal competency or incompetency of individuals to contract has been held to depend upon the law of the place_where the contract is made”; but the view of the law taken in those cases was accepted by many leading text-writers. In the year I877, however, the Court of Appeal decided the case of Sottomag/or vDe Barres (26 W. R. 455, 3 P. D. 1), in which the only_qlle8|510l1 was whether two persons, who were Portuguese subjects and domiciled in Portugal, and who, being first cousins to each other,
were, by the law of Portugal, prohibited from intermarrying, could contract a valid marriage in England; and it was held that they could not. In the course of their judgment the Lords Justices said: “It is a well-recognized principle of law that the question of personal capacity to enter into any contract is to be decided by the law of domicile "; and, later on, “The laws of a country where a marriage is solemnized must alone decide all questions relating to the validity of the ceremony by which the marriage is alleged to have been constituted; but, as in other contracts, so in that of marriage, personal capacity must depend on the law of domicile." Now, with regard to the particular contract of marriage, the decision in Sottomayor v. De Barres was completely in accordance with the opinions expressed in Brook v. Brook (9 W. R. 461, 9 H. L. Cas. 193); but the passages quoted above from the judgment of the Court of Appeal are considerably wider than was necessary for the decision of the case. It may be that no distinction in principle can be drawn between the marriage contract and any other contract in this respect, and that, as in the case of marriage, so in the case of other contracts, the validity of the contract (except in respect of the formal acts necessary to be gone through for the purpose of manifesting it) is to be determined by the lax doniicilh. Prior, however, to the dicta of the Court of Appeal in Sottomayor v. De Ba-rros, it seems that the consensus of opinion was in the opposite direction. Iuthe case of Re Cool.-e’s Estate Mr. Justice STIRLING has held himself bound by the opinions expressed in Sottamayor v. De B/irros, and has accordingly decided that the question of the validity of a marriage settlement executed prior to the marriage of a domiciled Englishwoman with a domiciled Frenchman is to be determined according to the lea: domicilii, and that consequently, as the lady was an infant when she entered into the contract, it was not binding upon her. The state of the law thus disclosed is far from satisfactory, and it is to be hoped that the Court of Appeal may soon have an opportunity of authoritatively dealing with the general question.
Sonia notzar appears to have existed whether covenants in restraint of trade are divisible with regard to time—that is, whether, supposing them to be reasonable for a certain length of tim_e, but unreasonable beyond, they can be enforced for the earlier penod, although invalid for the later. The matter is, of course, of great importance, for, if the law decided against such division, a covenant that has been for any reason drawn too strictly would be yoid altogether. It is satisfactory, therefore, to note the recent decision of Mr. Justice Noarir in Baines v. Gcary (ante, p. 363). In this case the covenant was entered into by a milk-carrier with his employer, and bound him not to serve for his own benefit any customers whom his employer, or his successors or assigns, might at any time have. The business was assigned, and the milkcarrier, who had left the employment just before the assignment, solicited the custom of the old customers, and an injunction was accordingly prayed against_him. To the contention that the covepant was unreasonable inasmuch as it extended to customers obtained after the defendant had left the employment, and was therefore, bad altogether, Mr. Justice Noiirn replied that it was, at any rate, reasonable with regard to those who were customers while the defendant was in the employment ; and holding, on the authority of _NichoIs v. St_reIton (7 Beav. 42), that the covenant was divisible in regard to time, he granted the injunction so far as related to these. This is certainly on the side of reason, and removes a pitfall into which those _who have to frame such covenants have been in danger of falling. That they are divisible in respect of space was decided in Price v. Green (16 M. & W. 346).
THE LAND TRANSFER BILL. II.
W1-1 resume the subject we left off with in our last week’s issuenamely, the extent to which deeds will be necessary under the system proposed by the Bill. Vendors may perhaps be found to contend that covenants for title are superseded by clause 18, subclause 1. That clause provides that “a registered charge or transfer shall have efiect as a conveyance by deed, and the Conveyancing Acts, 1881, 1882, shall apply accordingly." Now section 7 of the Conveyancing Act, 1881, causes the several wellknown covenants for title, “by the person who convoys and is expressed to convey as,” &c., to be implied “in a conveyance” (which by section 2, sub-section (v.), means a conveyance by deed). But, unless the existing forms under the Act of 1875 are so far modified as to allow of a transfer being expressed as made by“ a beneficial owner,” for instance (a liberty denied by the present G. R. 58 and form 23), a solicitor advising a purchaser should be careful to keep on the safe side.
II.—Ti1s LITERATURE or run Sumner.
We also, last week, referred to the bulk of the literature that at present exists on the subject of registration of title as a reason for abstaining from discussing the subject in its general aspect now. But as very possibly some of our readers (whose engagements in the present leave them little leisure to study a future so remote as the establishment of registration of title appeared but a short while ago to be) may have omitted to take note of that literature when it came out, and may now wish to be reminded where it is to be found, we now append an account of some of the principal worlis that have been published upon the subject of late years. The list does not pretend to be exhaustive ; if any omissions have been made we shall be glad to hear of them, meanwhile we believe that the list will supply enough mental fodder for busy men to go on with, at least till our next issue; and may, perhaps, also be found to contain a few references that will be new even to the leisurely student :—
1850. Report of Registration and Conveyancing Commission. (Specially valuable for lull fac simile reproduction of maps and indioes used in Belgium to define boundaries and record dealings.)_
1857. Report of Registration of Title Commission. (Advocates Vl6Wl
which have been accepted of late years only. Very full appen
dix by Mr. Wilson (200 pages) setting forth his scheme.) _
M. Ludlow. Stock, Share, and Land Registers. J uridloal
Society’s Papers, 18th April. (Much information as to the dis
tinction between the thrce.) _
P. Walstenholme. Simplification of title to land, &c. J undlcll
Society's Papers. 10th March. (Exposes the pai-ado_! Of
“ indefensible title," and gives outline of a plan for simplifica
tion of title without registration.) _ _ ,
Joshua William. The true remedy, &c. J uridlcal Society s Papers. 24th March. (Suggests numerous changes of dflfillli and registry of deeds.)
Lord Westburg/‘s Act (25 & 26 Vict. c. 53).
1869-70. Report of Laud Transfer Commission. _
1872. Return as to Registration of Title in the Australasian Cololllfli (Full text or “Torrens” Acts, and much information NW their working.) _ . Q
F. H. Colt. Remarks on the Land Transfer Question; 1'99"“! from Law Journal. (Advocates compulsion and registration 0 fee simples only. Sketch of suggested enactment.)
Lord Selbornfs Bill. Md to
G. Swat. Impediments to the Transfer of Land. Paper l‘_ x Juridical Society. 19th March. (Advocates reglfl-l'"_1°n ° title, shewing all subsisting rights, with detail of how it 11157 b d
1859. J. 1862. E.
__April 16, 1887. THE SOLICITORS’ JOURNAL. 39i
Sn-Horace Davey. _Letters to the Times, September. (Advocates
F. H. Coll. The Land Transfer Question. (Similar to former
J. Powell. How to make simple the Transfer of Land. (Full
1886. Inoorporaled Law Society. Statement on the Land Laws. (Full
1£opri'nted—Souciroas' Jovaiuii, Jan. 30 and Feb. 13, and Law
R. 12. Morris. Registration of Titles. Prize Essay. Judges-
J. Toplinm. Essay on Registration of Titles. (Reviews present
H. W. Elpbinelone on the Transfer of Land. January Law
T. Key. Re_qi'.strali'on of Title to Land. July Law Quarterly.
6'. F. Brwkdole. Registration of Title to Land. (Detailed com-
Reviewed —SoLiciroiis' JOURNAL, 11th December; law
Boiicii-ens‘ J0['KN.\L—HOW Should our Land Laws be Reformed?
Law Tmies—ltegistration of Titles, May 29 to July 27.
Low .7ournol—Pro.~pects of Land Registration, Dec 13.
,V€.Y‘§1€;7INl€7' Ifei~iew—New View of Registration of Title to Land,
A Duzloyus between Doctor and Sliuleail, &c., &c. (Failure of Land
188_ Remu-ed-Soniciroiis’ JOURNAL, Jan. 9.
1. W. H. I'own.mid._ Some Practical Observations on the Land fifileisfer Question. (Various detailed suggestions for registry of
F. Werner, Berlin. (0flicial edition of law substantially the
1. Why is it wanted ?--To appreciate the value of the new mode of obtaining an absolute title out of a possessory one instituted by the present Bill it will be necessary to explain briefly the reasons why the absolute, qualified, and possessory titles of the Act of 1875 each failed to give satisfaction to those who applied for them. The grounds of objection in practice to each of these are as follow :
(i.) The absolute title was so difilcult to obtain that it was useless to apply for it in contemplation of a sale, for it increased the expenses and delays of the immediate transaction, without sensibly attracting buyers or increasing the prices obtainable, while it was extravagant to apply for it aftcr a sale, or, indeed, at any other time, owing to the remoteness of the occasion of benefit.
(ii.) The qualified title was, in its result, a sort of condemnation of a landowner to make public confession, almost in the auction room, of some technical weakness, which, though easy enough to cover up negatively in conditions of sale, would be not unlikely to deter a purchaser when positively blazoned forth on the forefront of the certificate of title. Landowners naturally objected to standing up in a. white sheet for these peccadilloes, and so the qualified titles were even more disliked than the absolute, especially considering that the original application was in all cases obliged, by section 9 of the Act, to be (in form, at any rate) for an absolute title; so that they cost as much trouble and money and time to obtain as the absolute, and were of even more doubtful advantage when obtained.
(iii.) The possessory title was (as already shewn in our last issue) found to be far dearer than it ought to have been, and, at that price, was certainly not worth the outlay. In connection with these possessory titles, a curious instance of the pure via inertia: which has encumbered the progress of registration all along was given to Mr. O. Morgan’s Committee by a. well-known solicitor. He had ordered that all simple conveyances for the future should be registeredwith possessory title, and for some time supposed that his orders were being carried out. Having occasion to inquire after a particular case, he found that in no case had it been done. The clerks did what they were accustomed to do, and then put the several matters aside for a more convenient season (Evidence, No. 1149). It is to be hoped the “confirmation ” will prove more attractive.
2. How will it be accomplished ?—The process is virtually a shortening of the period of prescription to five years where possessory or qualified title has been registered, in consideration of public and private notice to all whom it may concern, and the compensation provided by the assurance fund in all cases of mistake, coupled with the applicant's affiduvit evidence, and his liability personally in damages (clause 10, sub-clause 5) if any loss results. The applicant pays all costs of reasonable petitions against confirmation. The important question for the applicant will probably be found in practice to be—how many petitions will usually be presented in opposition, of which he will have to pay the c_os_ts as “reasonable” 1’ N ow, apart from the question of boundaries, it is not likely that the public and private notices will evoke _many opposing petitions of a “ reasonable ” character. Public notices are merely guarantees of good faith, and will not be likelyto produce any oppositions. The private notices could hardly be served on anyone likely to object; for they could only be served _upon_ the persons named in the applicunt’s title deeds (who, being his own_predecessors in title, would seldom object). or upon registered incumbrancers—prescribed by the Bill—(who, as their rights are protected as such by the Land Transfer Act, s. 7, sub-section 1» would not trouble themselves much), or upon “cal1iI10l1eTF. "l"‘ would be easily arranged with previously in all cases whore their claims were not substantial and hostile; w_here they W919, °f course the matter could not go on, nor should it. _ _
The afiidavit to be made on an application for confirmation is
required to contain (clause 7, sub-clause 2) a. statement to the effect that the deponent has made due inquiry into the title. Thus the afiidavit will require to be made by a professional lawyer, or the statement will be a farce. This being so, it will be well to make the application immediately after the purchase, when the state of the title is fresh in the mind of the purchaser’s solicitor. _ _ _
On the whole, it would appear that if too much advertising is not insisted upon by the board, this process will be cheap an_d effectual. If the present rules are followed (G. R. 6) the appli¢-ant must be the owner of a fee simple in possession, or have power to dispose of the fee ; and so the persons (if any) dispossessed by mistaken confirmation would only be persons whose interests are remote, as to whom it is now generally admitted that money compensation is adequate. In fact, under the Settled Land Act, money value is all that such persons can make sure of even now.
But when we approach the question of confirmation of boundaries it will have to be remembered that the notices will be served on a very difierent class of persons than in the case of titles.
Under Lord Westbury’s Act it was found that, the rule requiring all reasonable expenses of objectors to be paid by the applicant (a rule which it is impossible not to retain), every objection to a boundary was contested with the greatest pertinacity ; in fact, one solicitor of experience thought that almost a third of the expenses of registration under that Act (which were very heavy) was due to this cause ; and another averred that it was cheaper for applicants to relinquish all disputed boundaries rather than fight the unequal battle. Under the present Bill, however, compensation will be given to persons deprived of their boundaries, which, no doubt, will make a difference; still, this fact will hardly disentitle an objector to his costs wherever the resistance was plausible in itself. From these considerations it will be a matter requiring grave consideration whether proprietors should ever be advised to apply for “ confirmation ” of boundaries except where they are able to arrange beforehand with their neighbours that no objections shall be taken.
A more difficult question in connection with boundaries would appear to be still in store—-nainely, bow to accommodate registration to the continual changes, often gradual and even imperceptible in their progress, that take place in the configuration of estates, and how to provide a readier means than the oifice has yet sucpepded in providing for the not uncommon exigency of a sale in
inquiry last year in which I succeeded in recovering back the o_vercharge for length, but failed as to the items for oath and exhibit, I am by no means sure that a. further appeal would have been wise if permitted, to say nothing of the fact that the real point raised _by the argument of the judges—viz., the “reasonableness” of paying the same oath fees inside as one would have to pay outside—wo\ild have had to be disposed of by mandamus whatever the ultimate result of the particular action. The question about to be raised by mamlamus deals with something like thirty thousand half-oro wns per annnm paid to the registrar, which, among other things, 'meaiis_ that commissioners for oaths (who have had to pay for their privilege) are quietly deprived of a yearly sum of £3,000 to £4,000! The great question, however, is the needless personal attendance of town witnesses between prescribed hours at a. building altogether out of the run of the public oflices, in the face of the Act giving them the option and convenience of going before a neighbouring commissioner. FRANCIS K. MUNTON. City, April 6. _j_______-——
COSTS OF IWARRIAGE SETTLEMENTS. [To the Editor of the Solicitors‘ Jou'rnal.]
Sir, —A solicitor is retained by a lady's father to draw her marriage settlement of personalty, which is one of the ordinary character. _ He duly prepares the settlement, and after the marriage sends in the bill to the husband.
The husband objects to pay the bill, alleging that his wife's father is the person liable.
All the ineidents—-the retainer, the marriage, and the delivery of the bill -happen during the year 1886.
Under such circumstances, is the husband liable for the bill, and does the case of Helps v. Clayton, decided before the Married Woman’s Property Act, 1882, govern the matter? TABELLIO. April 12.
[See observations under head of “ Current Topics."-ED. S. J
This was an appeal from a decision of Chitty, J., the questionbeing whether the deposit of a specification in the German language in the library of the Patent Oflice so as to be accessible to the public constituted such a prior publication as to render invalid a patent subsequently obtained in this country. The plaintiff was the assignee of a patent granted in 1880 for improvements in knitting machines. In 18'I"_I and 1879 certain specifications and drawings of German patents f0r_ kfllmflg machines were deposited in the London Patent Oflloe for public inspection. The specifications were in the German language, and it W115 admitted that it they had been English they would, together with the drawings, have conveyed sufllcient information to a competent W°1‘kWm toenuble him to carry out the invention which was the subject of the plaintiff's patent. Entries were published in the Patents Journal of the German specifications in the list of foreign patents, and they were referred to as knitting machines. A foot-note was appended to the list, if-KUIJB that the specifications, as well as the list of applications, might be consulted at the free public library of the Patent Ofice. The German 599°" flcaiions had been actually open to inspection iii the Patent Ofllce librfl-W1 the one during about two years and a half, and the other during lbw" six weeks previously to the date of the plaintiff's application. Chitty» J-i held that the German specifications had, under the circumstsnmw, been 5° published in this country, prior to the date of the plaintiffs patept, "lg have become part of the stock of common knowledge. The draw1!l85 ‘:1 specifications, having been placed in the Patent Olfloe library 9-fldm 6
I accessible to anyone who chose to go there, it was not necessary tn 511°"
that any person actually did go to the library and inspect them. The “gt that the specifications were in German was immaterial, as it could 11°‘ ° assumed that the information was given in a lang\1l8° whlch was unintelligible to the public (see the case reported ante, p. 27). ed TIIB Conn-r or Ar-rain. (Corros, LINDLBY, and Lorns. L--_I-I-) “mm
the decision. LINDLBY, L.J., said that the question was in suhstancé whether, under the circumstances, the plaintiifs assignvr Y" the ti“; and first inventor of the invention. The plaintiff had established a prim‘ f/ivie case by proving the patents, and he thus threw the burden Of Pm“
on the defendant, and it was for him to prove, if he could, some Pl’1°1' ‘me of the invention in this country, or some prior publication in this 0011111’-TY: of sornc intelligible description of the invention. In the Present 03,26 pi-ior publication was relied upon. It was said that before the date of t 0 plaintiffs patent there existed in the library of the Patent 0filce_’6W° copies of two German specifications, each of which, with the drsI111S*; annexed, _ccntaiued a description of the plaintifi’s invention. 0110 °