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THE PROCEDURE COMMITTEE'S REPORT, n.
Hemembesino the discussions which have lately taken place with respect to appeals from divisional courts to the Court of Appeal, and the important letter on that subject on which we lately commented, we turned with curiosity and interest to that part of the report which deals with appellate business. And as, in substance, the result of the report appears to be in favour of retaining divisional courts under the restored name of courts in Banc with very much their present functions, it is necessary to examine with some care the arrangements proposed and the grounds alleged by the committee for their proposals. But, in the first place, following the report in this respect, we may notice that the 21st resolution proposes as follows :—
"21. All appeals from a judge without a jury shall be to the Court of Appeal; and also where a judge has directed a verdict for plaintiff or defendant; and the Court of Appeal shall thereupon have power to dispose of the whole case."
As to the first branch of this recommendation it need hardly bo said that it is superfluous; the law being already that which it is proposed to enact. As to the second branch, it will, no doubt, carry to the Court of Appeal some few cases which would, at present, have to perform a double journey; but it is important to notice that it excludes all applications for new trials in cases where a verdict has really been given by the jury, and not directed by the judge, including as well cases where the finding is complained of as cases in which misdirection only is the ground of appeal. In seeking for the reasons for this limitation, we find lower down what we must consider in that light. They are as follows:— "Questions of new trial, moreover, after the decision of a judge and a jury, are really questions of appeal, and often of appeal from a judge and twelve other men. And this distinction is sometimes forgotten, when it is attempted to assimilate the practice in jury cases aud the practice in non-jury cases. In the latter it is, we think, quite right that the appeals should be direct to the Court of Appeal. In the former it seems to us better, on the whole, to preserve the appeal, as at present, to a court in Banc, aud to make such court in ordinary cases final. This was the old rule" [that is, finality was the rule before dissatisfaction with the then existing system caused an appeal to be given by the Common Law Procedure Act, 1854]. In non-jury cases, therefore, including those where the matter is altogether taken out of the hands of the jury, the appeal is to be to the Court of Appeal; in jury cases it is to be always to the court in Bono first, and, "in ordinary cases," it is to go no further, ou the ground that the appeal is "often" from the decision of a judge and twelve other
Now, in the first place, however convincing this argument may be, it does not apply to the case of misdirection, or show why the Court of Appeal should not deal with a single judge's misdirection in law as well as with a single judge's error in applying the law to the findings of a jury or in his finding of fact and law. But putting aside this case, and dealing only with jury cases which are strictly such, the reasoning is remarkable and needs to be considered carefully and in conjunction with the 22nd resolution, which is as follows:—
"22. All applications for a new trial in jury causes shall go to a court in Banc, consisting of three judges (of whom the judge who tried the case shall not be one); the decision of this court shall be final, except with their leave, or in case of difference of opinion, or where the subject-matter of appeal exceeds £500."
Now, the Court of Appeal consists of three judges of superior rank; the proposed court in Bano is to consist of three judges of leas rank. There/ore the appeal from
a decision of a single judge and twelve jurymen, as being of more weight than that of one judge alone, ought to be heard, not by the three judges of superior rank, but by the three judges of less rank, and should also, except in the specified cases, be final. This is not easy to follow, but when the case is further considered the difficulty increases. It may be that the judge does not agree with the jury; and it may be that the three, or possibly two out of the three, will agree with the jury against the one, and uphold the jury. Nay, it may even be that two out of the three may differ from the judge and the jury, in which case two judges will overrule two other judges of equal rank and the twelve jurymen. Put the case as you will, it will puzzle the most astute to explain why the co-opeiation of the twelve jurymen should cause the case to be sent to the proposed court in Banc, instead of to the Court of Appeal, or make it right that no further appeal should be allowed.
The case, however, of a difference of opinion is one of the excepted cases in which the right of appeal to the Court of Appeal is reserved, and let this exception be considered with reference to the next resolution, and the reasons on which the rule of finality ia ordinary cases is grounded, as well as the reasons for the provision made for appeal in the excepted cases. The 23rd resolution is as follows:—
"23. All appeals from the court in Banc shall be to a Court of Appeal of not less than five judges."
The reasons for finality in ordinary cases, and for the provision where an appeal is allowed, are as follows :—
"And further, if it be granted that there should be an appeal from judge and jury to the court in Banc, there is very good reason for making it, except in special instances, final. That three judges should overrule the judgment of one judge is natural and intelligible enough, and no one objeots to it; but that three judges in one room should be overruled by three other judges sitting in another is not, we believe, satisfactory to the public or the profession. . . . The business of the court in Banc, with the exception of the few important motions to which we have alluded, will be exclusively appellate business, aud in most of such cases its decision will be, and ought to be final, although in the heavier and more important new trial cases, and in all in which special leave is obtained, we prefer to leave an appeal from the court in Bano to the Court of Appeal. But we are unanimously of opinion that, in these appellate cases (the number of which will necessarily be few), the Appellate Court, which is to review the decision of three judges, should itself sit with a quorum of not less than five. We also think that the present divisions of the Court of Appeal, which, for ordinary purposes, consist of three judges respectively, should be empowered, in case of difference of opinion, to convene a court of five and to direct a re-argument before such re-constituted court. At present it not unfrequently happens, owing to a division of opinion in the Court of Appeal, that two judges of appeal overrule the view of one of their own number as well as the judgment of the court below—a result which cannot be satisfactory to the publio or the profession."
The manner in which the overruling of " three judges sitting in one room by three judges sitting in another room " is spoken of is hardly respectful to the Court of Appeal, or in accordance with the facts. Technically, the judges of the Court of Appeal are of superior rank. Theoretically, they are judges of greater experience, or at least of greater weight. Practically, they are so. We believe that the public and the profession do find what is complained of to be satisfactory, at least, so far as the complaint extends, though they might find it more satisfactory if there were no court in Bano. But it may be granted to human nature that it is less satisfactory to the judges who are overruled. But if an argument is to be conducted on these lines, what is to become of the appeal to the House of Lords P If judges are put on a level in this way, and it is thought enough to say that "a judge iB a judge for a' that," what shall we have to think if three judges sitting in one room—namely, the House of Lords—overrule, not three only, but perhaps five, judges sitting in another room—namely, the Court of Appeal— and perhaps also three other judges sitting in another room—namely, the court in Banc f People think that the noble and learned lords are superior in weight to the tribunals from which appeals lie to them; but they think the same about the Court of Appeal. Is the difference to be found in the fact that one judge is called a lord, and the others are only commoners P If so, perhaps the Court of Appeal might be allowed to number lees than five when the Lord Chancellor or the Lord Chief Justice sits there, or even less still when both are sitting together.
But, waiving this difficulty about the House of Lords, let us see whether the supposed difficulty will be solved by the proposed arrangement. In cases where the Court of Appeal, consisting of three members and hearingappeals from a single judge, is divided, and directs a re-argument before five judges, because it is not fit that two should overrule two, will it be found any more satisfactory that, on the re-argument, three should overrule three P And if so, why? And again, in appeals from the court in Banc, three may not overrule three, but five may overrule three. But what if the Ave are not unanimous? Then four may overrule four; nay, three may overrule five. Will this be satisfactory P
In truth, all these attempts to settle the question by mere numbers are essentially illusory, and but hiding one's head in a bush. As soon as the matter comes to be worked out, the difficulty re-appears. But does the allotment by law of the function to the men go for nothing P Does anyone suppose that the Lords and Commons are all of them the wisest men in the United Kingdom P Yet they legislate for the realm. Does any anyone suppose that all the judges on the bench are the best and ablest lawyers to be found P Yet their decisions are acquiesced in. In this way of arguing it is forgotten that the judges of the Court of Appeal are selected and appointed for this very purpose. It is forgotten that they are judges of more weight as well as highur rank. It is forgotten that on appeal the case is better argued, because it has been argued before. It is forgotten that the court is assisted by the very opinions which it is called on to review. It is forgotten that, owing to these and other causes, the very practice and habit of constantly hearing appeal business creates, to a large degree, the qualification which it requires. If these things are all forgotten so far as to make the judges of the High Court intolerant of having their opinions overruled by the Court of Appeal, the only remedy is to put an end to the courts in Banc, and introduce a state of things where that "natural and intelligible" event may take place of " three judges overruling the decision of one judge."
THE PRACTICAL EFFECT OF THE CONVEYANCING ACT.
VI.—Covenants For Title (continued).
The question now remains to be considered, whether the forms of covenants for title supplied by the Act fulfil the conditions mentioned at the close of our last article, as regards safety and the judicious apportionment of advantages and liabilities between the parties. The length of the remarks which wc propose to make upon this subject will be proportioned rather to the interest in it which seems to be felt by the public than to our sense of its intrinsic importance. For we have listened with a feeling nearly akin to compassion to the hopes which we have heard expressed that now at length the time is come when "covenants for title will be got rid of "; and we much fear that no little disappointment is being laid up for the public, when they come rightly to
understand what is the true nature of the present scheme. A covenant is not "got rid of" when it is implied instead of being expressed: it does not cease to exist by being printed in a book instead of being written in a draft. It is only made somewhat more difficult to fiud, and (to judge by the specimens now before us) a great deal harder to understand. An opportunity which will perhaps not easily recur, teems to have been lost by the learned trainers of the Act. It waa possible for them at least to have attempted to get rid of covenants for title not in pretence but in reality. Covenants for title are only devices for adjusting the rights and liabilities of the parties; and we think that it was quite within the compass of human ingenuity to have constructed a code of rules by which these rights and liabilities might have been satisfactorily adjusted, without any reference whatever to the form of a covenant. If this course had been adopted and successfully executed, we should have pronounced it a bcld and statesmanlike undertaking; though we might even then have set no very high value upon what had been gained. But, putting aside the trifling saving of a few folios in length, we are not able to say what advantages are possessed by these implied covenants to corapeusate for their undoubtedly greater difficulty of interpretation.
Section 7 enacts that certain covenauts shall be implied in certain deeds ou the part of certain persons, provided that the capacities in which these persons join iu the deed are expressed in certain specified ways. So far as regards this section, the Act does not take effect in the absence of auy expression of a different intention, but its operation needs to be expressly invoked by the use of certain phraseology in the operative part of the deed: which obviously tends to lessen what is to be gained by omitting express covenants. This, at leasr, is the only construction we can put on the provuion of section 7, sub-section 4.
The forms of covenant to be implied are six in number:—(A.) A covenant to be implied in a conveyance for valuable consideration, other than a mortgage; (B.) a further covenant when the property conveyed is leasehold; (C.) a covenant to be implied in a mortgage; I) a further coveuant, when the property mortgaged it leasehold; (E.) a covenant to be implied in a conveyance by way of settlement; and (F.) a covenant to be implied in a conveyance by trustees, mortgagees, &c.
We propose now to examine the form (A.) which is the one that would be applicable (for example) to "a conveyance for valuable consideration," which we presume must include a grant of auy estate in fee simple, whether in possession, in remainder, or iu reversion.
The form of this covenant follows in its general outline the ordinary limited covenants for title in similrir cases. By the words "otherwise than by purchase for value" it is restricted so as not to include predecessors in title more remote than the purchaser under the last conveyance for valuable consideration immediately preceding the present conveyance. It may be doubted whether this limit is strictly according to the prevailing practice; which is, we conceive, to carry the nexus of the covenants back, not barely to the la-it purchase for value, but to the last puichase for value upon which such covenants for title as could have been ineitted upon by the purchater were iu fact entered into. The question would be unlikely to arise under the present practice, and is therefore now unimportant; but we cannot be confident that it will always remain so, if the proposed new practice of purchase by open contract should become widely prevalent. Purchasers and their legal advisers now aro exceedingly careful to insist upon having all the covenants for title to which they are entitled, and the covenauts to which they are entitled do not seem to extend barely to the last purchase for value, but, as we have said, to the last purchase upon which such covenants were actually entered into as could have been insisted upon. Now it appears from sectiou 66 that the purchuer
under nn open contract cannot, aftei the Act has come operation, insist upon any further covenants than those supplied by the Act.
The somewhat questionable limitation of time above pointed out stretches through the whole covenant, which is divided into the usual headings, Eight to Convey, Quiet Enjoyment, Free from Incumbrances, and Further Assurance. The second of these runs as follows :—
"That, notwithstanding anything as nforesaid [i.e., anything by him or anyone through whom he derives title, otherwise than fcy purchase for value, made, done, executed, or omitted, or knowingly suffered], that subject-matter [i.e., the property expressed to be conveyed] shall remain to and be quietly entered upon, received, and held, ocenpied, enjoyed, and taken, by the person to whom the conveyance is expressed to be made, and any person deriving title under him, and the benefit thereof shall be received snd taken accordingly, without any lawful interruption or disturbance  by the person who so conveys, or  anv person conveying by his direction, or  righttully claiming or to claim by, tbrongh, under, or in trust for the person who so conveys, or  any person conveying by bis direction, or  by, through, or under anyone not being a person claiming in respect of an estate or interest subject whereto the conveyance is expressly made, through whom the person who so conveys derives title otherwise than by purchase for value."
It will be seen that the persons against whoso disturbance or interruption the covenantor covenants are divisible into five classes, which we have distinguished by numerals in square brackets. The italics mark a very noteworthy exception out of class 5; whereby the covenant is prevented from giving any remedy against interruption or disturbance by "auy person .... rightfully claiming or to claim . . . by through or under anyone not being a person claiming in respect of" what for brevity we may style a prior estate, "through whom the person who so conveys derives title otherwise than by purchase for value." This leaves such persons free to disturb, either without imposing auy limits whatever to their permitted disturbance, or at all events without imposing them with that clearness and precision which such a case requires. Suppose a father, retaining a life estate to himself, should settle the remainder in fee upon his second son; who in the father's lifetime should sell this remainder entering only into the statutory covenants. The lands would be conveyed expressly subject to the father's life estate; therefore persons claiming under him would be excepted from the covenant; and the question arises, who these persons are, and what is the extent of their rights. For example, does the elder brother, the heir-at-law of the father, come within this description? and might he, after the father's death, take advantage of a concealed flaw in the title, to assert a right to the whole fee and evict the purchaser altogether from the lands?
We suppose we shall be told that in the phrase, " any person claiming by, through, or under anyone not being a person claiming in respect of" a prior estate, the extent of the first "claiming" is by necessary implication limited to the extent of the second "claiming," that is, to the extent of the prior estate. "We suppose that this was the draftsman's intention; but we could have wished that, in order to express that intention, he had not made use of language which we think better adapted to exclude than to indicate any such meaning. The words " by, through, or under," were not used at random by the old conveyancers. Each of them had its appropriate function. "By" refers properly to cases where the hypothetical subsequent claimant was supposed to take or claim to take by the act of a previous owner, but not to claim the same estate; as for example, by the exercise of a power of appointment, in which case the appointee takes by a title paramount to the title of the appointor, and the latter is j not properly speaking his predecessor in title at all.
"Through" refers to cases where the subsequent claimant was supposed to take or claim (by feoffment, grant, devise, and the like) the whole estate of a predecessor in title. And " under " refers to cases in which the subsequent claimant was supposed to claim a less estate derived out of the estate of the predecessor iu title, in the sense in which a tenant for years may be said to claim under a former tenant iu fee simple. When we speak of A. as claiming " by, through, or-under" B., our language is anything rather than appropriate for limitiug by necessary implication the claim of A. to the extent of the claim of B. This language was, in fact, devised for the very purpose of abstaining from the imposition of any such limit.
The covenant for quiet enjoyment is the most important, and the most beneficial to the purchaser, of all the covenants for title; and defects in it cannot be adequately supplied by the »thers. The covenant for right to convey labours under the disadvantage, that it is broken, if at all, at the time of conveyance; and therefore the statute at once begins to run against it. It may be doubted whether the covenant against incumbrances could, except by a very forced construction, be held to give any protection against any such defect as has above been suggested. When we consider how easily the suspicions of purchasers are aroused, and how difficult they are to allay, we cannot but be of opinion that little wisdom was shown in allowing any doubtful symptoms to appear in the workmanship of this section, which rather required that perfect finish which is the best antidote against suspicion. But a general want of polish is displayed by numerous signs, not perhaps individually important, but such as a better policy would have avoided. Why, for example, in the parenthesis appended to the covenant, should the phrase "purchase for value" occurring in the covenant be alone mentioned, unless to suggest a suspicion that the phrase '' conveyance for valuable consideration," ocourring. in the body of the sub-sub-sectiou, may perhaps include a settlement in consideration of marriage? Since there afterwards occurs a separate form for "a conveyance by way of settlement," it may be said that a "contrary intention appears"; but we submit that this could have been, and therefore ought to have been, made to appear much more clearly. Et sic de similibut.
A copious variety of phrases is used iu these covenants to indicate the property dealt with by the deeds in which they are respectively implied. (A.) speaks not only of "the subject-matter expressed to be conveyed," but also of "the subject-matter of conveyance" and of "the subject-matter of the conveyance"; (B.) speaks of "the property conveyed"; (C.) returns to the phrases of (A.), except that it omits "the" in its last phrase; (D.) speaks of "the land conveyed"; (E.) and (F.) recur, like the words of a catch, to the laBt phrase of (A.). For much of this variety we can discern no cause, except that want of scrupulous carefulness to which we have above adverted. We could indeed have suggested a good motive for the peculiar phrase of (D.); but there was precisely the same motive for employing it in (B.), where it is not employed; so that it seems on the whole to have been used a good deal at random.
As a further illustration of our preliminary remarks, we will beg the reader's attention to subsection (3).
"(3.) Where a wife conveys and is expressed to convey as beneficial owner, and. the husband also conveys and is expressed to convey as beneficial owner, then, within this section, the wife shall be deemed to convoy and to be expressed to convey by direction of the husband, as beneficial owner; and, in addition to the covenant implied on the part of the wife, there shall alto be implied, first, a covenant on the part of the husband as the person giving that direction, and secondly, a covenant on the part of the husband in the same terms as the covenant implied on the part of the wife."
Here we seem to have no leas than four separate covenants, one by the wife and three by the husband. We seem to find, (1) a covenant by the wife, in the form (A.), by virtue of the fact that she "conveys and is expressed to convey as beneficial owner"; (2) a covenant by the husband, apparently in identical terms, by virtue of the fact that he also conveys and is expressed to convey in like manner; (3) a covenant by the husband, under sub-section (2), to which for brevity we refer the reader without citing it, by virtue of the fact that the wife is deemed to convey by direction of the husband as beneficial owner; and (4) a covenant on the part of the husband "in the same terms as the covenant implied on the part of the wife." We do not see how to diminish the list. At first sight we might suppose that the sub-section, without this being expressly said, was intended to override the general provisions as to covenants of the form (A.), and to prevent covenants from being implied on'the part of "a person who conveys and is expressed to convey as beneficial owner"; whereby we should get rid of our first two covenants. But this hypothesis is inadmissible, because under it there would be no " covenant implied on the part of the wife, to which sub-section 3 expressly refers." Forced therefore to conclude that the sub-section contemplates four covenants, we could wish that we had been iuformed whether the wife's is to bind her separate estate. And we should be very grateful for any information touching the precise distinctions between the several covenants on the part of the husband.
Our criticisms have thus far dealt with those qualities of these covenants which seem to make them a doubtful boon to purchasers. In other respects, they have been thought to impose a somewhat heavier burden upon vendors than is imposed by the covenants in common use. Sub-section (6) enacts that
"The benefit of a covenant implied as aforesaid shall be annexed and incident to, and shall go with, the estate or interest of the implied covenantee, and shall be capable of being enforced by every person in whom that estate or interest is, for the whole or any part thereof, from time to time vested."
We have seen it suggested that this renders the covenantor liable to be sued by any person holding a less estate derived out of the estate of the purchaser, even though the grant of the less estate should contain an express stipulation to the contrary; and generally, that the sub-section makes it impossible for an implied covenantor ever to obtain a release of these implied covenants. If the covenants were in other respects satisfactory, we should think little of this point as an objection. Its advantage to the purchaser and his assigns probably outweighs any disadvantage, more apparent than real, which it entails upon the vendor.
We regret to learn the death of Dr. Bluntschli, which occurred suddenly, from failure of the heart, at Carlsruhe, on the 21st inat. He was born at Zurich in 1808, and studied law and history in Germany under Savigny and Niebuhr, as well as later at Paris; was professor at Zurich from 1833, first of Boman law, and afterwards of German; became, in 1848, professor of German private law and general public law at Munich, and in 1861 a professor at Heidelberg, where he resided during the remainder of his life. The list of his works would be very long, for they extended over almost every branch of law, as well as history, politics, and religion in some of its philosophical aspects, and they included numerous occasional writings as well as regular treatises. That by which he is best known in the world at large is cer
tainly his Droit Inter national Godifie—to give it the title of the French translation which he sanctioned as a second original; but in Germany be is at least equally known by his "General Public Law," Allgemeint* Stattrecht, which, in its fifth edition became Allgemeint Statslehre.
But what was most remarkable in Dr. Bluntschli is that, with the thoroughness of a'German professor, he combined the keen taste of a Swiss for active public life, and a faith in the triumph of his ideas which age in no way cooled. While resident in Switzerland he was prominent in politics on the Liberal side, as well duriug the commotions, consequent on the nomination of Dr. Strauss to the chair of dogmatic theology at Zurich, which gave the Conservative party a temporary triumph in that canton, as during the diputes which preceded the war of the Sonderbund; and he was a member of the Grand Council of his canton, of many Federal diets, and of the Federal Government when Zurich was the Vorort. And it is a high testimony to the part which he personally took that he was charged by the confidence of nil parties with the preparation of the civil code of the canton. Afterwards, in Germany, he was a member of the Customs' Parliament at Berlin, and although he refused to become a member of the Reichstag in 1871, he served iu both chambers of the Grand Duchy of Baden, and it is understood that his confidential advice was highly valued by the Grand Duke.
Dr. Bluntschli's zeal for getting practically realized whatever he believed to be right and true was also shown in his being one of the founders and the permanent president of the Protestant Association of Germany, having religious liberty for its object, and in his activity with regard to international law. He was one of the delegates to the Brussels Conference on the Laws of War, and oae of the founders, as well as repeatedly president or vicepresident, of the Institute of International Law; and many in Eugland will remember seeing him when that institute met at Oxford last year, where another honorary degree was added to the long series of distinctions which he had received from various countries, including the title of corresponding member of the Acadimie del Scieuces Morale* et Politique*.
Those who had the privilege of knowing him personally will loug remember the heartiness of bis character and manner. In no scientific discussion did he forget, or allow others to forget, that human interests were being dealt with. The end came when he had just delivered the closing speech in the General Synod of Baden, and was on his way to have an audience of the Grand Duke: a fitting close for such a life.. J. Westlaki.
THE CONVEYANCING ACT.
[2"o the Editor of the Solicitor*' Journal.]
Sir,—I am reluctant to trespass again on your attention, but it may not be unsatisfactory to acknowledge, as I gladly do, and with a sense of obligation proportioned to the clearness of exposition resnlting from its very severity, that I now have it from the principal draftsman of this Aot itself that you are quite right in construing the 13th section as applying to cases of suh-sub-demise, and in stating that on a contract to grant an underlease the leasehold title can still be called for. He puts it thus—that under the Vendor and Purchaser Act, 1874, on a contract to grant a lease by a leaseholder with a freehold reversion, or with a leasehold reversion, the iutended lessee cannot call far the title to the freehold reversion, but he can to the leasehold reversion, while under the Conveyancing Act,
section 13, he will not be able to call for the title to the leasehold reversion; but the intending lessor who has a leasehold interest must show his own title— that is, the title to his own lease, which of course he has, or ought to have, in his own power—contra as to intending lessor who has a freehold interest. He need not, under the Vendor and Purchaser Act, 1874, show his freehold title, this being in accordance with the custom.
By way of Parthian arrow, and without shifting my ground, but only citing another out of what seem to me many illustrations of the samo thing in the Act, can you fairly say, with reference to the 8th section, for example, which applies to "sales made" after the commencement of the Act, and entitles a purchaser to have the execution of the conveyance attested by his own solicitor, that the section could have any application at all after the completion of the sale? I confess it seems to me that if the section applies to a "sale made," a "sale made" must mean a sale not completed, inasmuch as at the moment of applying the section the sale is ex hypothesi not completed, the conveyance not being as yet executed or its execution attested, and it is conceivable that a sale might never get to completion, and yet be a dale to which the section applies, and therefore a "sale made."
20, Threadneedle-street, E.C., October 26.
[We congratulate our correspondent upon his conversion. With regard to his "Parthian arrow," we must once more gently point out that be is shooting quite wide of the mark. We declined, so far as regards the meaning of the word sale, to interpret section 3 by reference to other sections of the Act, because section 3 contains a special interpretation clause of its own specifically dealing with that word, of which the terms seem particularly well adapted to exclude all other sources of interpretation derived from the Act. Instead of referring lis to some more of these other sources, which we refused by anticipation to admit, he ought rather to have applied himself to remove the ground of our refusal.— Ed. S. J.}
[To the Editor of the Solicitors' Journal.'] Sir,—In the early part of this year your journal contained some very useful and proper observations on Lord Cairns' Conveyancing Act. I think it is only fair to both the professions that you should, by insertion of this letter, point out that the recent criticism on the same Act which you have inserted is not of a similar character. I will give a few instances.
Paper No. 1 (p. 859), as to section 17 of the Act, says: "This is emphasised by the crudeness of construction which, having in the first line relied upon the interpretation clause [of mortgagor] in the fourth line, makes specific mention of persona claiming through the mortgagor."
The fourth line makes no such mention. The words are, "any person through whom ho [the mortgagor] claims." The crudeness appears to be in your critic, who cannot see the difference between "a person claiming through A. " and a " person through whom A. claims." The further remarks on the same section confound tacking of debts and consolidation of mortgages. It was not intended to abolish tacking, nor could it be safely done as to mortgage debts, and there is no sufficient reason for preventing a bond debt being tacked to a mortgage debt.
Paper No. 2, p. 871, as to section 15 of the Act, says, "No penalty is provided in case of refusal" [to transfer]. Certainly not. Is there any penalty in case of refusal to reconvey': No. Both are put on the same footing. The amount due is tendered, if not received, interest stops. If received, the mortgagor " [sic.—we suppose our correspondent intended to write " mortgagee "] " is a trustee of the legal estate. Now he is only bound to
reconvey. He may refuse. After the Act he is also bound to transfer. He may, in like manner, refuse, and the money can be tendered with the same result. The remedy in both cases is a vesting order. Your critic need not be so very solicitous about "liberty of the subject." It is not going to be interfered with.
Again, p. 871, the section may be "evaded by the mortgagee going into possession pro formS, and immediately going out again." What is going into possession pro formd? Is it anything else than going into possession simply 1 And what are the liabilities of a mortgagee who goes out again without consent of the owners of the equity of redemption ?—Bank of Australasia v. Band-in-Hand Company (L, K. 4 App. Cae. 391).
Paper No. 3, p. 885, as to section 4, says, "We may remark that estate means primd facie a legal estate. An equitable estate, so called, was a mere right. Is it certain that an equitable fee, the legal estate being outstanding, would be within this section?" It is quite certain. It is not within the section, nor is it required to be. A purchaser having a contract, and having paid his money and accepted the title, what your critic calls "a mere right" is immediately, under the ordinary principles of equity, transferred to the purchaser. He can get the legal fee by conveyance from the person in whom it is outstanding. This person and the executor can make a complete title now. There is no necessity to resort to this section. Your critic fails to see that the whole difficulty is to get the legal estate when it is devised in settlement, and this the section provides for.
I need not go further, nor describe the rest of the criticism (all of the same sort) by its true name. I have said enough to show that the writer is not perfect either in power of accurately reading the Queen's printers' type or in knowledge of equitable principles, and I think he should not be allowed to mislead your readers. At least he might spare his coarse abuse of others who, with perhaps equal imperfections, have at least devoted an amouut of trouble of which he has not dreamt and appears incapable, to compensate for those imperfections.
Edward P. Wolstenholme.
2, Stone-buildings, October 24.
[We have hesitated, from regard to Mr. Wolstenholme's high professional reputation, about printing the last paragraph of his letter, which comes much nearer to the offence of "coarse abuse" than anything which we have written. We utterly deny that there can be adduced a single passage from any of our articles which any rational being, except himself, would think deserving of such an epithet.
(1.) With regard to Mr. Wolstenholme's criticisms, we have at the beginning to thank him for having corrected us upon one very slight particular. He must make the most of this solitary admission; for we are not able to make any others of a similar kind. It is quite true that in a verbal criticism of section 17 of the Act we confused together the two expressions "persona claiming through the mortgagor," and "any person through whom he claims;" and Mr. Wolstenbolme is entitled to our gratitude for clearing our eyes.
Whether there was any confusion or other want of clearness in our account of the two things, styled by Mr. Wolstenholme, "tacking of debts" and "consolidation of mortgages," we shall leave the readers of our article on that subject to judge. Even granting that those designations are the most proper to describe the things, how can we justly be charged with confusion, when we explained, in the clearest possible language, what was the precise nature of each of the things—giving the cases and stating the principles upon which each doctrine depended? But we do not at all admit that Mr. Wolstenholme's language is so correct as our own. In our opinion, the term "tacking" is more properly confined to those cases in which separate charges upon the same property are tacked to the legal estate; and the