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same would be delivered in the ordinary course of the post (sec. 37); but the amended bill provides that no proceeding shall be taken on the faith of the notice having been served, until after the expiration of such period, not less than five days, as the Landed Estates Court by general order may appoint (sec. 40); and the new sec. 41 directs the Postmaster-general to return to the “Registrar"-we think that the words of the court" might have been added-all letters so marked as mentioned above, and addressed to any person who cannot be found.
Section 42 provides that no purchaser, for valuable consideration, shall be affected by the omission to send, or by the non-receipt of any
notice. There is a similar section in the amended bill No. 2, and on this last we shall have to make some remarks byand-by, which will be applicable to both sections.
The original bill imposed a penalty on persons suppressing documents or evidence in the course of proceedings before the court. Sec. 47 of the amended bill imposes also a penalty on persons fraudulently altering any documents in the course of such proceeding, or giving false information to the court, knowing the same to be false.
Section 49 provides that nothing in the act shall entitle any person to refuse to make a complete discovery by answer to a bili in equity, or to answer any question in any civil proceeding in the courts of law, equity, bankruptcy, or insolvency; but no such answer is to be admissible in evidence against such person in any criminal proceeding under the act. How it bappened that the law-officers of the crown should have put their names on the back of the original bill without seeing to the insertion of such a clause, must be a matter of astonishment to all.
The original bill directed that the court should hold its sittings at a place to be provided by the Treasury, and empowered the judges to sit in chambers either together or separately, and gave the judges so sitting the same powers as if sitting in open court; but whether the judges were to sit together or separately, or for what purposes they were to sit in open court, the bill did not mention. Sec. 67 remedies this defect, by providing that the judges shall sit together in open court for the determination of such questions arising upon the examination of titles as may be reserved by them—the words “or either of them are omittedfor discussion in
By the original bill any person might have appeared before the court as agent for another; sec. 68 declares that no person shall be entitled to appear for anotber in any proceeding in the court, unless he is a barrister, solicitor, or certificated conveyancer.
We now turn to the original bill No. 2, the omitted sections of which are secs. 17, 44, 48, 49, 53, & 55.
Section 17 provided, that where any land was charged, in pursuance of the act, with the payment of any money or interest, there should be implied (unless such implication be expressly negatived), a covenant, on the part of the registered proprietor, to pay the money and interest so charged. We do not know why this clause has been omitted. It would have been useful, inasmuch as money might have been lent on the security of a registered charge alone; whereas, under the amended bill, such a proceeding, if not impossible, would be impolitic, for the borrower would be but a simple contract debtor; which, supposing the security of the land charged to prove insufficient, would not be satisfactory. Could trustees, for instance, lend their money on such a security ?
Section 44 provided that if any person should suppress or misrepresent any document, or fact, relating to the title to any registered land or mortgage, he should be guilty of a misdemeanour. When it is remembered that the title to registered land, or a registered charge, can be affected only by what appears on the register, and that one great duty of the registrar is to suppress all notices of trusts, and that no purchaser is to be affected by any notice, of any kind, not on the register, it is difficult to conceive what possible object the draftsman could have had in view when he penned this clause, and still more difficult to account for the fact of the Solicitor-general permitting it to remain after he had well considered the whole of the bill in which it was contained.
Section 48 provided that the registrar should keep a list of the persons by whom notices of leases had been given, and that the person whose name was entered in the list, should be deemed to be the “holder of the notice” in respect of which he was registered, and that no notice should be removed without the consent of the holder, for the time being, of the notice. An extremely clever provision is this, by means of which, in the event of forfeiture of the lease, and eviction of the lessee, or upon the expiration of the lease, it would have been impossible to remove the notice without the consent of the holder, The framers of the bills seem at first to have thought that this consent would in no case be withheld !
Section 49 provided for the transmission of notices, upon the death, bankruptcy or insolvency of the holder, or upon the marriage of a female holder, but made no provision for transmission on assignment of the lease by the holder himself.
Section 55 provided that on the death of a cautioner his personal representatives, in the event of bankruptcy or insolvency his assignees, and in the event of a marriage of a female cautioner her husband, should be entitled to notice in the place
of the cautioner so dying, becoming bankrupt or insolvent, or marrying. Here, again, no provision was made for the case of a sale, and conveyance or assignment of the interest in respect of which the caution may have been lodged; and moreover to enact that the representatives, or assignees, or husband of a cautioner, shall be entitled to notice without requiring them first to give notice of the death, bankruptcy, &c., of the cautioner, and to furnish their own names and addresses, is simply absurd. It will also be observed that no provision was made for the case of an interest in land, descendible to the heir of a cautioner, or of any interest devised or bequeathed by him.
In lieu of secs. 48, 49, & 55, the amended bill contains a new section (sec. 77), empowering the Landed Estates Court, with the sanction of the lord chancellor, to make rules for the transfer, transmission, and withdrawal of notices of leases and of caution, and for the regulation of any matters relating to registry not. provided for by the act.
Section 53 directed how notices were to be served on a cautioner. The amended bill, however, contains a nest of clauses relating to notices, of which we shall presently say a few words.
The new clauses of the amended bill No. 2, are secs. 12, 21, 44, 61, 62, 63, 64, 65, 66, 67, 68, 77, 78, 79, 87, 88, 90, and 91.
The registration commissioners in their report of 1856, in considering the objections to a system of registration of assurances, remark (p. 13), that one objection “to a registration of assurances would be the enhanced difficulty of obtaining loans by a deposit of deeds. The transactions of this kind are very numerous. At present a respectable man in possession of title-deeds may, and does, obtain relief in sudden emergencies confidentially, easily, and at a few hours' notice we may confidently conclude, that any system of registration which did not provide for arrangements equal in convenience to the deposit of deeds, would fail to meet with general acceptance." Notwithstanding these remarks, no provision equal in convenience to that of a deposit of deeds was made in the original bill. Section 12 of the amended bill provides that the deposit of the land certificate, shall for the purpose of creating a lien on the land, be deemed equivalent to a deposit of title-deeds.
The original bill did not empower a registered proprietor to charge his land with the payment of an annual sum, but merely with a gross sum and interest (see sec. 15); sec. 16 of the amended bill remedies this defect, and sec. 21 gives the proprietor of a charge of an annual sum, not having a power of sale over the land charged, all such remedies for the recovery of such annual sum as he might have enforced if the same had been a rent
charge duly charged upon the land by an unregistered instrument. How is a person to determine what remedies he might have had if an instrument existed which does not exist ?
Section 44 supplies a grave defect in the original bill; it Tequires the registrar, on the request of a proprietor, to certify the state of the title of the proprietor-in fact, to 'furnish him with an authorized abstract of his title, and of all charges, cautions, &c, affecting his land.
Vast powers are given to the Landed Estates Court by this bil). Section 61 provides that barristers, solicitors, and certificated conveyancers, may practise in matters arising out of the act, in the same manner as they are empowered to practise in that court by the act No. 1.
Section 62 provides, that in a suit for specific performance, the court having cognizance of such suit, may cause all' persons having registered interests in the land in question, or having entered up notices of leases, cautions, &c., to appear in such suit, and shew cause why the contract should not be specially performed ; and sec. 63 provides for the payment of the costs of all such persons.
Sections 64—68 relate to notices, and comprise additions to, and alterations of, various sections spread over various parts of the original bill. By sec. 64 every person whose name is entered on the register as proprietor of land or of a charge, or as cautioner, or as entitled to receive any notice, or in any other character, is required to give an address in England. The original bill required an address in the metropolis to be given in all cases. By sec. 65 every notice required to be given to any person may be served personally, or may be sent by post in a registered letter, marked outside, “ Landed Registry"-why not Land Registry ?and such notice—“if served by post," ought to have followed, as in bill No. 1, sec. 40-unless returned, shall be deemed to have been served " on the cautioner” at the time when it would be delivered to him in the ordinary course of the post; but no proceeding is to be taken on the faith of such notice having been served until the expiration of such period, not less than five days, as the Landed Estates Court may by general order appoint. It must be here observed that the registered proprietor of land, or of a charge, is in certain cases entitled to notice ; but, as he is not a cautioner, the portion of sec. 65 which limits the time within which notice is to be deemed to have been served, does not apply to bim. This is an example of the evil of patching; the piece of section 65 which we allude to is taken out of bill No. 1, sec. 40.; there the term “cautioner" is extensive enough, because under that bill cautioners are the only persons to whom such notices by post are required to be sent; but this little bit does not match ihe clauses in bill No. 2.
Sec. 66 relates to the return of letters to the Registrar, and is similar to sec. 41 of bill No. 1. Sec. 67 is in these words—“On the return of any letter containing any notice, the Registrar shall act in the matter requiring such notice to be given, except under the direction of the Landed Estates Court, &c.” The word "not" has been omitted between the words “shall ” and “act.” The draftsman may console himself with the reflection that a similar mistake has before occurred, not only in bills, but in an act of parliament (See 9 Geo. IV., c. 55, s. 46; 5 & 6 Will. IV., c. 34). Sec. 68 relates to the protection of purchasers, and is similar to sec. 42, in bill No. 1.
Sections 77, 78, and 79, relate to the rules to be made by the Landed Estates Court. Sec. 77 we have already had occasion to refer to. Sec. 78 provides that the rules shall have the force of an act of parliament, and may be altered, &c.; and sec. 79 directs that the rules shall be laid before parliament.
The original bill declared the forging of the registrar's seal, and other offences of a similar nature, to be forgery, but did not define the punishment on conviction. To this clause are added four sections, viz., secs. 87, 88, 90, and 91. Sec. 87 declares that if any person fraudulently procures an order of the Landed Estates Court; in relation to registered land, or any entry, erasure, or alteration on the register, such person shall be guilty of a misdemeanour, and it provides that the parties to the fraud shall not be benefited by it. Sec. 88 provides, that no proceeding or conviction for any act declared to be a misdemeanour, shall affect the civil remedy which any person aggrieved may be entitled to against the person who committed the act. Sec. 90 defines the punishment for felony; and sec. 91 relates to the obligation to make discovery notwithstanding the enactment of penalty, and is similar to sec. 49 in bill No. 1, already referred to.
We cannot refer particularly to all the alterations, material and verbal, that have been made by the Solicitor-general in his original bills; for the only mode of distinctly pointing these out would be by printing the original and altered sections side by side. We must content ourselves with noting the sections of the original bills that have been altered, and the corresponding sections in the amended bills, and with mentioning some few of the more prominent alterations and of the grosser blunders, in addition to those we have already incidentally noticed, leaving the reader, if so inclined, to compare the remainder of the clauses the one with the other.
As to Bill No. 1.