Page images
PDF
EPUB

fear their ed in the mmittee in

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

statement of the result of the decision. THE LIMITS OF THE RULE IN GEORGE v. CLAGETT. upon a belief, it surely can only arise from a belief which the

If the equity depends The case of Cooke v. Eshelby, recently decided in the House of plaintiff has caused in some way–or, in other words, which the Lords (12 App. Cas. 271), is one of some importance, not because defendant was entitled to derive from his conduct. Nice questions the point actually decided in the case could be really considered may, conceivably arise as to what conduct or circumstances would doubtful, but because it appears to be the first occasion on which justify such a belief on the defendant's part. It seems hardly the subject involved has come before the highest legal tribunal. possible to lay down any general rule on the subject, as it must

The question was as to the true limits of the doctrine laid down depend apparently on the circumstances of each particular case. in the well-known case of George v. Clagett (7 T. R. 359, 2 Sm. With regard to persons the nature of whose business is notoriously L. C., 8th ed., p. 118). The head-note to that case states the only to act as agents or go-betweens, such as some kinds of brokers, result of the decision as follows-viz., that, if a factor sells goods there would generally be very little question. In George v. as his own and the buyer knows nothing of any principal, the Clagett the agents were factors to whom the possession of, or buyer may set off any demand he may have on the factor against indicia of title to, goods is or are intrusted by their principals for the demand for the [price of the] goods made by the principal. the purposes of sale, and also were in the habit of selling goods The terms of this proposition are perhaps rather too sweeping on their own account. In Cooke v. Eshelby the agents were unless read by the light of the facts of the case itself. In the brokers, and also were in the habit of acting as principals. It is note to the case in Smith's Leading Cases that learned author obvious that a good deal would turn on the nature of the agent's states that the decision too clearly results from natural equity to business, and how far it was known, or could be known, or not, to need much discussion or explanation. He subsequently states that the plaintiffs or the defendants respectively. the rule is subject to the exception that it “only applies when the party contracting has not the means of knowing that the party with whom he contracts is but an agent. If he has the means of knowing, and, though he may not be expressly told, still must be

THE INCIDENCE OF ADMINISTRATION COSTS. supposed to have known that he was dealing, not with a principal,

IV. but with an agent, the reason of the rule ceases, and then cessante THERE should have been added (ante, p. 424) to the administration ratione cessat lex.This qualification of the rule seems open to costs falling on the residuary personal estate objection on the ground of ambiguity, because it half implies, but does not exactly state, that the means of knowledge must always country personal estate in a colony or foreign country, together

(c) The costs of getting in or converting and remitting to this be considered equivalent to knowledge that the agent is not a with all duties payable to the Government of such colony or country principal. It may be observed that the judgment in Baring v. Corrie (2 B. & A. 137), on which it is based, seems open to the 429, 10 CH. D. 219). In that case a testator who died domiciled

in respect of such personal estate (Peter v. Stirling, 1878, 27 W. R. same objection. In the case of Cooke v. Eshelby, which we are discussing, the duty is payable on the property of all deceased persons,

in England had personal estate in the Colony of Victoria, where

The duty facts were these : -L. & Co. sold cotton to C. in their own names, payable amounted to £2,800, and it was contended by the residuary þut really on behalf of an undisclosed principal. C. knew that legatees that the colonial duty should be paid by each legatee on L. & Co. were in the habit of dealing both for principals and on the proportion of his legacy which the assets in Victoria bore to their own account, and had no belief on the subject whether they the whole assets, but Malins, V.C., held that, “whatever are the made this contract on their own account or for a principal.

It was held that C. could not, in an action brought by the principal the expenses of calling them in, or selling property, or paying duty

expenses of getting in these assets in Victoria, whether they are for the price of the cotton, set off a debt due from L. & Co. The reason for this decision seems tolerably obvious.

to the Government, they are all deductions to be made as expenses The

of the estate to be paid out of the estate generally; and that which natural equity upon which such a claim of set off depends appears remains after paying all the debts of the testator remains as assets to be, so far as we understand it, that the purchaser was induced of the testator, and goes to pay the legacies in full.” to enter into the contract because he thought the agent was selling as principal, and having regard to the existing state of the account We now come to the consideration of the rules which have been between himself and the agent, or that the debt sought to be set laid down as to the incidence of administration costs in cases where off was allowed to be contracted or to remain unsued for because the residuary personal estate is insufficient for their payment, and supposed to be practically secured to the extent of the set off. upon this subject the cases are frequently inconsistent, and difficult The purchaser might let the supposed vendor have goods practically to reduce to any definite general principle. There are two in payment of his own debt, when he would not trust him for them general principles, either of which might have been adopted, but on credit. It is true that in particular cases the supposed natural neither of which has, in fact, been completely adopted. In Eyre equity might not really exist in fact, the defendant not having v. Marsden (1839, 4 My. & Cr. 243), Lord Cottenham laid down been induced, in fact, to alter his position on the faith that the the rule that administration costs should be defrayed in such a agent was principal, but our legal forefathers had a sound and manner is not to disappoint the legal directions of the testator”; sturdy faith in the excellence of general rules as preventing pre- hence, that any part of his estate "unaffected, for any reason, by carious inquiries into doubtful questions of fact, and so it was laid the dispositions of his will, is to be applied in payment of the costs down generally that in all such cases the equity existed. It is of administration in preference to, and therefore in exoneraation rather curious to observe how very little the real grounds of it are of, those parts of his estate which are affected by such dissited therein. But, in any case, it is clear that, when a defendant of the personal estate only, but the principle is one which might did not, in fact, believe that the agent was selling as principal, the have been reasonably applied both to the personal and real estate. groundwork of the equity fails altogether.

We shall see that this principle has not been so applied. The other The headnote to the report of the case we are discussing in the course which might have been adopted is to follow the rules which e pas in his own name for an undisclosed principal, and the prin- debts. In Harrison v. Harrison (1872, 8 Ch., at p. 344, ncte cipal sues the buyer for the price, the buyer cannot set off a "debt | [1]), Romilly, M.R., laid it down that administration costs were by the conduct of the principal to believe, and did, in fact, believe, of the cases the decisions upon the payment of debts are treated observed that the actual facts of the case did not cover the whole costs. But, as we shall see, the order prescribed for the application be this proposition. It being admitted that the defendant did not of assets in payment of debts has been departed from, and a good believe that the agent was alacting as principain, itt vas imt deal of the confusion and uncertainty which prevails in some the plaintiff should have induced him by his conduct and to be opinion as to whether the rules as to debts are binding with lieve. But, nevertheless, it seems clear from the judgments and regard to costs. the reason of the thing that the proposition so stated is a correct (7) It seems that where the residuary personal estate is insuffi

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

the capital, but also interest thereon from the respective times Helyar, 1876, 4 Ch. D., at p. 57, and of Pearson, J., in Hurst v. at which the payments were made. The persons who are entitled

cient to pay the administration costs, the deficiency must be made descended to a testator's heir-at-law by reason of a forfeiture by up by the pecuniary legatees (Tompkins v. Colthurst, 1875, 24 the devisee under the will is not liable to pay administration W. R. 267, 1 Ch. D. 626 ; see also Collins v. Lavis, 1869, 8 Eq. costs in priority to specifically-devised estate (Hurst v. Hurst, 708; Dugdale v. Dugdale, 1872, 14 Eq. 234). These decisions 1884, 28 Ch. D. 159). are opposed to one of the points decided in Hensman v. Fryer It seems, however, that, if the testator has expressly or im(1867, 16 W. R. 162, 3 Ch. 420, 426), where Lord Chelmsford, pliedly charged the whole of his real and personal estate with C., held that where the general personal estate is insufficient for payment of his debts and testamentary expenses, the descended payment of debts and legacies, the pecuniary legatees and the and specifically-devised real estate will be liable rateably to payresiduary devisee must contribute rateably to the payment of the ment of administration costs (Stead v. Hardaker, 1873, 21 W. R. debts which the general personal estate was insufficient to satisfy ; 258, 15 Eq. 175; see the judgment in Scott v. Cumberland, 1874, but in each of the three above-mentioned cases the decision on 18 Eq., at p. 585). this point was treated as mistaken, and opposed to the settled rule (9) In case the assets before mentioned are insufficient for payof the court; and in Tomkins v. Colthurst, Malins, V.C., said that ment of administration costs, such costs must be borne by the " No one denies that it has been the rule of the Court of Chancery specifically-bequeathed personalty, specifically-devised realty, and that pecuniary legacies are, in case of the deficiency of the general residuary realty rateably according to value (Jackson v. Pease, personal estate, the primary fund for payment of the debts and 1874, 23 W. R. 43, 19 Éq. 96; Lancefield v. Iggulden, on appeal, funeral and testamentary expenses.” This is in conflict with the 1874, 23 W. R. 136, 10 Ch. 136). The basis of the rule is that a rule on which Romilly, M.R., said in Harrison v. Harrison, ubi residuary devise is still specific, notwithstanding the 24th section suprà) "he had for many years acted,” under which real estate of the Wills Act (Hensman v. Fryer, ubi supra). descended was applied in payment of debts and administration (10) It seems that the last assets to be applied in payment of costs in priority to pecuniary legacies; but it is to be observed administration costs are real or personal property over which the that, on appeal in that case, Lord Selborne, C., said that “it testator had a general power of appointment. This is the rule with does not appear to us to be a true result, either of principle or of regard to the payment of debts, on the ground that such property the English authorities, that the costs of the general administra- is not the property of the testator (Fleming v. Buchanan, 1853, 3 tion of the personal estate would have been thrown on the De G. M. & G. 976, 979); and it is presumed, though we find no [descended] real estate in favour of legatees upon the principle of decision upon the point, that such property is applicable to paymarshalling."

ment of administration costs of a will, and in the same order as in (8) Next in order comes the descended real estate (Barber v. the case of payment of debts. Wood, 1877, 4 Ch. D. 885, 886 ; see also Galton v. Hancock, 1744, (11) In the administration of property subject to a power of ap, 2 Atk. 430 ; Wood v. Ordish, 1855, 3 Sm. & Giff., at p. 128). In pointment the administration costs fall rateably on the appointed Barber v. Wood, Hall, V.C., after deciding that certain real estate and unappointed shares of the property (Warren v. Postlethwaite, descended to the heir-at-law, said that "it must be the first real 1845, 2Coll. 108, 123; Trollope s. Routledge, 1847, 1 De G. & estate to be applied in payment of debts in case there be a de- Sm. 662, 671; Moore v. Dixon, 1880, 29 W. R. 12, 15 Ch. D. ficiency in the personalty.” It seems that the same rule applies 566). It is to be observed that all these cases were decided on the to the payment of administration costs (Morley v. Tunstall, 1859, administration of the trusts of marriage settlements, and that in unreported, but see extract from the decree given in 7 Eq., at p. Moore v. Dixon (ubi suprà) Malins, V.C., laid some stress upon 416 note (1); see also the judgment in Scott v. Cumberland, the circumstance that all the objects of the power were "pur1874, 18 Eq., at p. 583; and Row v. Row, 1869, 7 Eq. 414, in chasers for value, and entitled to take free from costs as far as which case, however, James, V.C., expresses a doubt as to whether they can.” There appears to be no reported case where the questhe rule would apply if the heir-at-law had had “a clear legal tion has arisen in the administration of a will, but it is presumed estate in the property descended to him.”)

that the rule will apply to the partial exercise by will of a power Maddison v. Pye (1863, 32 Bear. 658) and Bagot v. Legge of appointment over a fund settled by a marriage settlement, (1864, 2 Dr. Sm., at p. 262) are, at first sight, opposed to this (12) Where administration costs to which the specifically-devised rule, inasmuch as in both those cases it was held that administra- personal estate and the real estate are bound to contribute are paid tion costs must be borne rateably by the descended and devised in the first instance out of the general personal estate, each of the estates. It is to be observed, however, that in Maddison v. Pye other funds must pay interest on the amount which it ought to the testator's personal estate had been duly administered, appar- have contributed at the time when the payments were made out of ently out of court, and the suit was merely to administer the the general personal estate.

This appears to follow from the real estate ; moreover, there was an agreement for compromise of decision of Mr. Justice North in Ashworth v. Munn, reported in the suit, the terms of which the court held (see p. 659)" to mean last week's issue of the WEEKLY REPORTER (35 W. R. 512). In that the costs should be borne by the whole of the real estate that case a testator devised and bequeathed his real and personal cision in subsequent cases ; the decision appears to have turned on debts, funeral and testamentary expenses, legacies, and expenses of special circumstances, and ought not to to have been reported at execution of the trusts, it should be held on certain trusts. Under all; it is, moreover, very badly reported, neither the terms of these provisions, of course, the debts and other charges fell rateably the will nor the names of the counsel being given. The judg- on the whole of the testator's estate. In the course of administrament in Bagot v. Legge (ubi suprà) expressly recognizes the tion by the court, however, the debts and some of the legacies principle of the costs being first payable out of the personal had been paid, in the first instance, out of the general personal estate, and then out of the descended estates," and distinguishes estate. the case before the court on the ground that there was no personal rateably to the payment, the specifically-bequeathed personal estate

The question was now raised whether, besides contributing estate, and that the questions were entirely as to the rights of the and real estate were liable to pay to the personal estate interest he devisees inter se and the rights of the devisces and heir-at-law. the amount of capital which they ought to have contributed at the that costs exclusively occasioned by the administration of the real There seems to have been no previous direct authority on the estate of the testator are to be borne by the real estate exclusively, point, but Mr. Justice Morth held that interest was payable. should be considered as applying only to the case of costs exclu- proportion of the charges. There were good reasons for its doing and as prescribing the manner in which such costs are to be borne the contribution is to be made between the three funds, and I think

It appears that lapsed shares of residuary real estate are to that each of them ought to be placed in the same position as it hit be considered as on the footing of descended real estate as had contributed its proper proportion at the time at which it ostet regards priority of application in payment of administration costs to have done so.

It seems to me, therefore, that the real estate. overruled—but see the remarks of Jessel, M.R., in Trethevy v.

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

own.

[blocks in formation]

con

[blocks in formation]

475 debts at the proper time, would not thenceforth have received the comparatively few and trivial. We think we may say that, considerincome of the capital which they had contributed, as they have, in ing the nature of the subject, the degree of accuracy attained is fact, done.

somewhat remarkable; and we may add with confidence that the book is as practical as it is erudite, and that it ought to find its way

on to the table of every conveyancing solicitor.
REVIEWS.

CONTRACTS.
SEARCHES,

THE LAW OF CONTRACTS. By J. T. CLARK HARE. Boston: Little,
ON SEARCHES: CONTAINING A CONCISE TREATISE ON THE LAW OF

Brown, & Co.
JUDGMENTS, EXECUTIONS, LIS PENDENS, BANKRUPTCY, INSOL-
VENCY, ANNUITIES, AND STATUTORY CHARGES, AS AFFECTING LAND. fully and ably expounded than any other branch of the law. None

Of recent years the subject of contracts has been perhaps more
By HOWARD WARBURTON ELPHINSTONE, M.A., author of “A the less Dr. Clark Hare's book will deservedly gain a position of its
Practical Introduction to Conveyancing," and one of the authors
of “Key and Elphinstone's Compendium,” and of Elphinstone, full account of the history and final development of contracts in

At first sight it may seem to aim at too much. It contains a Norton, and Clark on Interpretation of Deeds,” and JAMES Roman law; incidentally it describes very clearly the manner in WILLIAM CLARK, M.A., Fellow of Trinity Hall, Cambridge, one of which this law was made, and finally digested and declared ; it conthe authors of "Elphinstone, Norton, and Clark on Interpretation siders the principles which regulate its modern application; it then of Deeds,” Barristers-at-Law. W. Maxwell & Son.

passes to the discussion of the history of contracts in English law, This work will not require any introduction to the readers of the attempting in particular a new explanation of the origin of the SOLICITORS' JOURNAL, or, we venture to think, any very elaborate action of assumpsit and the doctrine of consideration; it deals testimony to its merits. The articles “ Concerning Searches” which generally with the principles of contract in English and American appeared in these columns at the close of last year and the com- law; and, finally, as an example of these principles, it discusses fully mencement of the present year were, we believe, generally recognized | the contract of sale. If a book of this kind is not the one to which as supplying & want in legal literature, and affording in a terse and a lawyer will first turn, it will prove of the greatest value to those clear form information of great practical value to the who are interested in the theory of law as well as in its practice, and veyancer. The labour and research which were expended in the even upon practical grounds it will be useful to refer to the later exploration of a subject in many parts previously almost untrodden chapters, in which many points that have recently come up for have probably, however, hardly been appreciated; anyone who decision are consi lered, and both the American and English cases glances at the voluminous table of cases prefixed to the book will see are exhaustively discussed. that the reports and authorities from the earliest period have been The portion of the book which treats of the Roman law contains, ransacked, and the table of over 150 statutes will give some idea of as might be expected, little that is new on the subject. It is the range of investigation in this direction.

valuable, however, for the clear and interesting manner in which is The book, however, is not a mere republication of the articles ; connects the growth of the law with the increasing and varying needs there are few pages which do not bear traces of careful revision, and of the peoples whom it affected, and the influence which the opinions advantage has been taken of the republication to add important of the jurisconsults bad upon it is explained perhaps more fully matter on several branches of the subject. Thus the chapter on than in any previous work in the language. The perusal of the first Crown Debts has been elaborated into a complete, but concise, hundred pages will amply repay any student of Roman law who treatise on this thorny subject; large additions have been made to the wishes to gain a clear idea of contracts and legislation in that portions of the book relating to charges under Public Acts and charges system. under Local and Personal Acts, and the chapter on Local Registries In dealing with the history of contracts in England, the author has been considerably extended.

enters upon a more difficult subject. The original actions of conIn the general mode of dealing with the subject, the book follows tract were covenant and debt. The former was purely formal and the plan adopted in the articles ; in the case of each class of incum- gained validity from the writing under seal. The latter only lay brances the law is first stated and then practical rules and directions where there was an executed consideration, or, as it was called, a are given as to the searches which may be made, and in a concluding quid pro quo. Afterwards the case of a promise upon an executed chapter the result of the book is summed up by a practical considera- consideration followed by malfeasance, or a negligent performance tion of the searches usually made, as determined (1) by the estate or resulting in damage, was dealt with as a tort and was remedied interest of the vendor or the status of the persons searched against, under the Statute of Westminster 2 by an action of trespass on the and (2) by the tenure or nature of the property; sections being case. The problem is to discover how the action of assumpsit was added on searches on mortgages and searches at the Central Office. introduced for the case of such a promise followed by nonfeasance, We think that this concluding chapter alone would be worth a great and then for the case in which mutual promises are the consideration deal more to any solicitor or conveyancer than the price of the book for each other. There is no doubt that it was originally an action It gives in a terse and lucid, yet detailed and complete, form an of tort, and was brought to remedy some detriment sustained by answer to the question which practitioners have such frequent the plaintiff. Dr. Clark Hare points out that this detriment became reason to ask with reference to the varying circumstances of transac- ultimately the consideration, and hence he explains the rule of the tions, What searches are usually made in practice ?

common law, that, in an action for breach of contract, the plaintiff Not content, however, with the practical help afforded by this must be the person from whom the consideration moves. As to the chapter, the authors have prefixed to the book a tabular guide to origin of the action, it is usually said to have been a development searches,” printed, for easy reference, on paper of a different colour from trespass on the case when the allegation of an undertaking bad from the rest of the book. The reader will find here, in become prominent enough to oust the trespass and substitute the about five pages, a summary of the searches to be made under assumpsit. But Dr. Clark Hare thinks he has found a more probable different circumstances, with a statement of the place of search and origin in another action under the Statute of Westminster 2 - viz., length of search, references being given to the page of the book at deceit on the case. If by my promise I induce a man to act and so which more detailed information is to be found. The result is that alter his position, my subsequent refusal to perform is more akin to the solicitor who is considering what searches should be made before deceit than to trespass. But if this was the idea of the early lawyers, bis eye over these five pages in order to obtain a satisfactory assumpsit was fully established as an independent action, trespass on general guide to the searches required, and, on “reference to the case was the usual action both for malfeasance and nonfeasance. the pages indicated, he will find full information on the sub We have seen that Dr. Clark Hare derives consideration from the ject. Throughout the book we find the same careful attention detriment to the promisee which was necessary to found assumpsit as to ease of reference and clearness of arrangement; the chapters an action of tort. Though there is truth in this idea, it is probably are broken up into sections and sub-sections, each headed in large not the whole truth, and, very opportunely for our purpose, we have type with a statement of its subject matter, and as these headings strong additional light thrown upon the subject by Mr. J. W. Salare given at the commencement of each chapter, the reader has no mond's article on the " History of Contract in the current number difficulty, even without reference to the index, in finding his way to of the Law Quarterly Review. He there combats Mr. Justice the subject he has in hand.

Upon a subject so extensive, and so obscure and complicated, as quo in debt, and takes up the idea which Professor Pollock“ favours then the practical question of what are usual searches, upon which way of chancery. The whole article is one of the ablest contributions

to be we have had to this perplexing subject, and, in particular, the loom for difference of opinion ; and it is almost impossible writer's theory of consideration is worked out with great clearness the points on which we should be dispose de dos paisera question to rely upon the mere promise. This was carried to its full extent the book, as far as practicable, without prepossession, we find of contract law seems to be to dispense more and more with form and

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

It is, therefore, submitted that, if the construction I have

in the canon law, by which mere promises were held to be binding. recasting with a view to increased clearness. We are glad to add, But, upon these, some check was necessary, and the lawyers re- however, that in most respects the edition has been satisfactorily introduced the Roman idea of causa, though with a somewhat edited. Throughout the book we have found the recent decisions up different meaning. This causa it was which was adopted in equity to the end of last year carefully and intelligently incorporated, and when it began to take cognizance of contracts and particularly of the index has been enlarged. covenants to stand seised. It had, however, a much wider meaning than our modern consideration, including valuable consideration, natural affection, legal obligation, and moral obligation; and although it has shrunk to its present limits, yet traces of all these remain in the law. But even if, as Mr. Salmond says, consideration

CORRESPONDENCE. in this sense in equity was in use before the quid pro quo of debt,

THE LAND TRANSFER BILL, yet it seems not improbable that, upon its transfer to common law, the well-known use of the idea of quid pro quo should have had much

[To the Editor of the Solicitors' Journal.] irfluence in reducing it to its modern dimensions. The actual

Sir, -My apology for addressing you on this subject is that I transfer to common law and the rapid growth of assumpsit are gather from the remarks contained in your notice of the Bill (appearaccounted for by the desire of the common law courts to check the ing in the issue of the SOLICITORS' JOURNAL for the 9th ult.) that tendency which was appearing in equity to exercise jurisdiction over inquiry and discussion on the subject are invited. contracts. For this purpose they not only suffered the new action to

It would seem very desirable that, if there are clauses in the Bill grow, but also, now that mere promises were to be enforced, adopted which are justly susceptible of opposite constructions, some movement the idea of consideration as a limit upon them.

should be made towards clearing up doubtful wording before the Bill With the remaining part of the book we have not space to deal, passes into law, and as section of the Bill appears to me to bear a but, as we have already said, it will be useful to those who wish to different construction to that placed upon it in the notice, I venture know the latest decisions of American law and how these compare to give my reasons for thinking so. with the corresponding cases here. As an example, we may refer to

The portion of the notice in question to which I refer is sub-section the exhaustive manner in which the subject of contracts by post is (a.) on the compulsory clauses, and is headed, “Is registration to dealt with in the chapter on Bilateral Contracts. Or, again, to the remain compulsory? chapter on the Sale of Specific Goods, where the question of transfer

It is submitted that registration of transfers is clearly intended to of ownership is very clearly worked out, and, in particular, with re- remain or continue compulsory. Section 2 of the Bill provides that gard to such substances as wheat, where a portion of a particular

“Her Majesty may, by Order in Council, from time to time, declare quantity is sold without actual separati on. Throughout the book

that, on and after a day specified in the order, the registration Dr. Clark Hare keeps clearly before the reader the fundamental dis- of the transfer of land in the district is to be compulsory, and that, tinction between the civil law and the cominon law. In the former on and after that day, it shall be the duty of every person before selling, the essence of a contract consists in the meeting of two minds for a settling, or mortgaging land in the district to be registered as a sideration, and, in the absence of this, the mere consent goes for noticed that this section does not speak of registration of land, but of nothing. In conclusion, Dr. Clark Hare's book must be welcomed for its tration of land referred to in section 4 of the Bill, and also referred

registration of the transfer of land, nor does it speak of the first regiscareful comparison of the two systems of law, for its skilful abstrac- to in the principal Act. tion of principles, and for the application it makes of them to present of land, and it is submitted that it makes it compulsory on every

It deals with the registration of the transfer circumstances. It is typical of the improved method which now person for ever after the date to be mentioned in the order, before characterizes all our better treatises.

selling, settling, or mortgaging land, to be registered as proprietor,

Where is there any indication that this registration is to be confined TORTS.

to the first transfer only? It would seem primâ facie to apply ADDISON ON TORTS. A TREATISE ON WRONGS AND THEIR REME- registration preparatory to the first dealing with the land, there

equally to all subsequent transfers. In fact, if it were confined to & DIES. By C. G. ADDISON, Esq. Sixth EDITION. By HORACE would be no compulsory registration of transfers at all. SMITH, Barrister-at-Law, Recorder of Lincoln. Stevens & Sons.

If the construction suggested by me be correct, the result of section Mr. Justice Cave brought the last edition of this standard work 2 will be to provide that every dealing with the land, whether it be into excellent shape, and as bis arrangement has been adopted by his by sale, settlement, or mortgage, shall be prefaced by a registration successor, we have only to deal with the mode in which it has been of the last dealing which took place-i.e., the vendor, settlor, or developed and the changes in the law incorporated. Among the mortgagor is to register preparatɔry to dealing with the property developments is a short chapter entitled "The Justification of but the purchaser, trustees of a settlement, or mortgagee are not Torts,"

which gives with commendable terseness the effect of bound to register on acquiring their respective interests in the propthe cases relating to the different modes in which a tort may erty. The effect of this would be that no person would ever acquire be justified. We observe, by the way, in this chapter å note an interest (except the mere right of enforcing a contract referred to at p. 47, stating that “the setting of spring guns to shoot tres. in sub-section (a.) of section 2) except from a registered proprietor, passers does not seem to be justifiable.” Surely the words “ with. and it is submitted that this is the intention of the Bill. out public notice" must have accidentally slipped out of this note. Section 3 supports this contention, inasmuch as it does not refer to The bare_effect of the alterations introduced by the Married a first sale of land by the court, but speaks generally of a sale by the Women's Property Act, 1882, and of the decisions thereon, is care court. Sections 4, 5, and 6 also appear to support the view of confully given, but we miss any independent comment on the statutory tinuous compulsory registration. provisions or decisions. Thus, Seroka v. Kattenberg (34 W. R. 542, 17 If, however, this view is not correct, but the case be as suggested the Act–is dismissed with the mere statement thatses this section section 2 has been exhaustively complied with, and that it is then

in the notice-namely, that, when a proprietor has been registered, Band from his "liability to bea sued hinh respect of this wife's forts og private de arst, protected by cautions, aithough it is true that it {i e., section 1, sub-section 2] has been held not to relieve the hus- open for the parties to continue ad infinitum a system of conveyancing. committed after marriage.” way in which the effect of the kills of Sale Act, 1882, is stated. the present system of conveyancing ; still, it is submitted that, in We are first of all told (p. 460) that “ By the Amendment'Act, 1882, ada tien to making conveyancing, in these instances, as complicated every bill of sale must be duly attested and registered within seven (after a few years Had elapsed from the date of the one compulsory have annexed thereto or written thereon Patschedule, bedc.; and intuito upartihi completion, and them placing of a caution on the register after

Every bill of sale executed after the 31st of October, 1882,must searching for "cautions from the date of the registration of the Leated not until p. 464 that the reader is incidentally informed that the Act completion. of 1882 does not apply to bills of sale given otherwise than by way so much of section 10% of the Act of 19, bas provides for attestation by å segist see that, inwau great many instances, such as settlements that,

On the same page, after the statement that registered title would insure subsequent registration ; but I would execution of every bill of sale shati bevattested by one thamore mods that matter omnes other transactions had taken place without regist solicitor is repealed, and it is enacted by the Acte de tresty that the possibly mortgages, there may be motives for avoiding registration: prioriterion wou niolemdalidate the belt be sealer og beplanne with this landu diothen the register than to clear the title up to date, and thus still to be considered as we moneta Aiance with this trati, me the night idual frantsactions concerning them, to sing pls places grantee. The reader will be very apt to take this observation as each succeeding person would defer registration.

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

better if it were ; that is, assuming that it is recognized as desirable
that there should be a general system of registration of titles at all.

GAPP v. BOND-O. A. No. 1, 12th May.

A. W. BILL OF SALE-DUMB BARGE-EXCEPTION OF “ ASSIGNMENT OF SHIP OR [Our correspondent has omitted to observe the first words of clause

VESSEL”-BILLS OF SALE Act, 1878 (41 & 42 Vict, c. 31) s. 4. 2 (a.) of the Bill.-ED. S. J.]

This was an interpleader issue to try the right to certain dumb barges seized by the defendant in execution and claimed by the plaintiff. One

Lloyd Bond, who was the owner of the barges, assigned them to WestTHE LAW SOCIETY MEETING.

wood to secure an advance of £1,500, and Westwood, under a hiring

agreement, let them to Lloyd Bond, by which, on payment of all the in[To the Editor of the Solicitors' Journal.]

stalments, the barges became the absolute property of Lloyd Bond, with Society I see there is a mistake in the statement of what I said, above power, the plaintiff paid Westwood the £1,500 and took over the

Sir, - In your report of the last meeting of the Incorporated Law power to Westwood to take possession upon default in payment of any
which alters the whole sense of it.
I was alluding to the notice sent out by the council purporting to agreement. The barges having been seized in execution of a judgment

security and re-let the barges to Lloyd Bond under a similar hiring
confirm certain resolutions passed at the previous meeting of the obtained by the defendant against Lloyd Bond, Mathew, J., on an inter-
society with reference to the club. This notice did not contain, as it pleader issue, held that the plaintiff's security was a bill of sale, and was
should, an accurate copy of the resolutions so passed and as recorded void for want of registration, and was not within the exception of section
by you in the first February number of the SOLICITORS' JOURNAL. | 4 of the Bills of Sale Act, 1878, taking" transfers and assignments of any
At that meeting, on the motion of Mr. G. B. Gregory, the words ship or vessel or any share thereof” out of the operation of the Bills of
of the club were inserted in the resolution after the words Sale Act.
general meeting,” because it might be thought that the resolution that the case of the Union Bank of London v. Lenanton (3 C. P. D. 243),

The COURT OF APPEAL allowed the appeal. Lord ESHER, M.R., said meant that no persons outside the society should be admitted members of the club without the sanction of a general meeting of the shewed that the words in the exception were not confined to ships or society" instead of “ of the club."

vessels requiring registration under the Merchant Shipping Act, 1854.

That limit being out of the question, a “ship" or å vessel must be These words, “of the club," were left out of the confirmatory what, in popular language, was called a ship or a vessel. A vessel could notice, and my contention was that the notice was, therefore, bad, not include everything that floated on the sea; it could not include a raft and that it would be unfair to members of the society who were not or a Thames wherry. These barges, however, though not ships, were present to pass a vote of which they had not had due notice, and clearly vessels in the ordinary meaning of that term. The case, therefore, which was not, in fact, confirmatory of what was done at a previous was within the exception, and the plaintiff's security was not affected by meeting. Your report makes me say They" (the absent members) the Bills of Sale Acts. Fry and LOPES, L.JJ., concurred.-COUNSEL, "might very reasonably imagine that the words of the club'should Kemp, Q.C., and Wheeler, Q.C.; Charles, Q.C., and H. Reed. SOLICITORS, come in after the words ' general meeting,' because it was a notice Woodbridge & Sons ; J. Wheatley. of motion sent out by the society.” The word “club" should be "society

EDMUND KIMBER.

PURSER v. THE WORTHING LOCAL BOARD-C. A. No. 1, 18th 15, Walbrook, E.C., May 17.

May.
RATING—“MARKET GARDEN "-LAND COVERED WITH GLASSHOUSES-PUBLIC
HEALTH Act, 1875 (38 & 39 Vict. c. 55), s. 211, BUB-SECTION 1 (B.).

This was a special case stated under 12 & 13 Vict. c. 45, s. 11. George

Purser was a grower of fruit, vegetables, and flowers, carrying on business CASES OF THE WEEK.

at Worthing, and describing himself as a “market gardener and nurseryman.

Purser occupied a piece of land about one acre in extent, upon BARNETTS, HOARES, & Co. v. THE SOUTH LONDON TRAM

which were sixteen glasshouses or greenhouses of various sizes, subWAY CO.-C. A. No. 1, 10th May.

stantially built with brick walls let into the ground, and used by him for PRINCIPAL AND Agent—COMPANY-ASSIGNMENT or Moneys due by Como vegetables and flowers in the course of his business. Parser had been

the purposes of growing therein tomatoes, cucumbers, grapes, and other PANY-REPRESENTATIONS OF SECRETARY-AUTHORITY.

rated in respect of the glasshouses or greenhouses on their full On the 12th of January, 1883, Messrs. Green & Burleigh entered into a

net annual value. Purser appealed, and contended that he contract with the defendants for the construction of a portion of their ought to be rated in respect of them at one-fourth only of line. By the contract the defendants were to pay 90 per cent. of the their net annual value under section 211, sub-section 1 (8), of amount certified from time to time by their engineer, and to retain 10 per the Public Health Act, 1875, which provides that inter alia) "the cent., the retention moneys not to be payable till after a six months' occupier of any land used as market gardens or nursery grounds shall be maintenance term (during which the contractors were to maintain the assessed in respect of the same in the proportion of one-fourth part only tramway works), which was to expire on the 21st of March, 1884. On the of the net annual value thereof.". The Divisional Court (Day and Wills, 2nd of November, 1883, Green & Burleigh gave the plaintiffs a charge for JJ.) held that the land on which the glasshouses or greenhouses were £2,000 upon the retention moneys, then in the hands of the defendants, erected was a “market garden," and allowed the appeal. The case is in consideration of a loan for that amount. Notice of this charge was reported 35 W. R. 519. The Worthing Local Board appealed. given to the secretary of the defendant company, who in reply wrote that

The Court dismissed the appeal. Lord Eszer, M.R., said that the they noted the charge upon the retention moneys then in their hands to land in question was used, not as a pleasure garden, but as a market the amount of £2,000, which they held to the plaintiffs' order, payable on garden. It was used by the occupier for the purpose of utilizing the soil the 21st of March next. In answer to an inquiry as to whether the so as to grow vegetables and other things for sale in his business. It was 42,000 was free from any possible claim of the defendant company, or certainly not the less " land used as a market garden" because the land anyone else, the secretary on the same day wrote to the plaintiffs that the had glass over it. Fry and LOPES, L.JJ., concurred.-COUNSEL, Lumley honeys they held represented retention moneys on contracts, and beyond Smith, Q.C., and English Harrison ; Charles, Q.C., and A. Glen.' Solicithe possible claims of the company upon the contractors to keep up their Tors, John Hands, for W. F. Verrall, Worthing; Wolferstan f Avery. works for six months after the expiry of their contracts there was no further charge on the same.

On the 21st of March, 1884, the plaintiffs Re MORGAN, OWEN v. MORGAN-0. A. No. 2, 16th May.
demanded the £2,000 from the defendants, but they refused payment,
except as to a small sum, on the ground that there was not puncient R. S. O., 1883, XIX., 4, 27—STRIKING OUT EMBARRASSING PLEADING-
moneys in their hands due to Green & Burleigh, either on the 2nd of

INCONSISTENT ALTERNATIVE DEFENCES.
November or subsequently, to meet the plaintiffs' claim.

This was an appeal from a decision of North, J., (ante, p. 462).
contended that the defendants were estopped by their secretary's repre- The question was whether the defendant was entitled to plead inconsistent
sentations, and that they were therefore liable. Field, J., gave judgment alternative defences of fact. Rule 4 of order 19 provides that “
for the defendants.

Tur Court dismissed the appeal. Lord Esher, M.R., said that the of the material facts on which the party pleading relies for his claim or question was whether the court could, on the mere fact of a person being defence, as the case may be.” In the present case the action was brought the secretary, hold that he was a person on whom the plaintiffs were by the administrators of a wife against the executor of a husband, claiming inquiries as he did. His lordship was content to repeat what he said in plaintiffs alleged that he had received on trust for her separate use. The Newlands v. The National Employers" Accident Association (54 L. J. Q. B. 428): | defendant, by his statement of defence, denied that the husband had ever tolla. Secretary is a mere servant ; his position is that he is to do what he is received the moneys in question, and said that, if he had received them, are thing at all, nor can anyone assume that statements made by him are the alternative, that, 11 the moneys had been received by the husband", hefe e sarily to be accepted as trustworthy without further inquiry. That they had been repaid to the wife, or that she had made a gift of them to of evidence that the secretary had authority to answer"such questions, off, the Statutes of Limitation, and delay. The plaintiffs asked that the the court could not assume that it was within the scope of his duty to do defences of re-payment, gift, accord and satisfaction, and set off might be 80LOPES, L.J., concurred. —

- Counsel, Charles, Q.C., and Pollard; struck out under rule 27 of order 19, as being inconsistent with the Blyth, $ Dutton.

action." North, J., helà that the defendant was not entitled to plead

[ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors]

every

« PreviousContinue »