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D W. SIA
e Debentare ree year, Interet helt
CASES REPORTED THIS WEEK.
including in that term not only the person who has power to "retain In the Solicitors' Journal.
and employ” the solicitor, but also any person "liable to pay Turner, In the Goods of ........... 112
Vernon v. Hallam ......... ...... 111 the solicitor. But then, as we pointed out last week, the lessor, in Carlyon, Re, Carlyon v. Carlyon
111 Coates to Parsons, Re,
case the lessee does not retain the lessor's solicitor, is both the
In the Weekly Reporter. person having power to “ retain and employ" and also the person
“ liable to pay" in the first instance.
Exchange and Hop Warehouses v. surance Co.
Association of Land Financiers
Fine Art Society v. Union Bank of
114 A POLICE CONSTABLE is not entitled to be registered as a Parlia-
Lucas v. Harris
112 last, and this decision appears to be unquestionably correct. The Bedford
Miller v. Douglas
Municipal Trusts Co., In re......: 120 question turns upon the construction of sub-section 7 of section 28
Oxford Building and Investment of the Parliamentary and Municipal Registration Act, 1878 (41 & poration of Bangor 108 Society, In re
.. 116 South Wales Mineral Railway Co.
Reg. v. Judge of the City of Lon 42 Vict. c. 26). By this sub-section a revising barrister “shall v. Davies
expunge the name of every person, whether objected to or not, Co. v. The London and North
110 where it is proved” to him that such person was, on the last day Western Railway Co. 109
of July then next preceding, incapacitated by any law or statute from voting at an election for the Parliamentary borough to which
the list relates.” The incapacity of constables depends on different The Solicitors' Journal and Reporter. statutes, borough constables, county constables, City of London
constables, and metropolitan constabl each having a separate LONDON, DECEMBER II, 1886.
statute applying to them, varying slightly, but not substantially,
in terms. In Doulon v. Harris the claiming constable belonged CURRENT TOPICS.
to the Metropolitan Police Force, and the revising barrister struck A FTER THE RISING of the courts on the 21st inst., all the offices him off on the authority of the Metropolitan Police Act of 1829 (10 of the Supreme Court will be closed from and, including Friday, to the police force shall, during the time that he shall continue
Geo. 4, c. 44), s. 18. By this enactment, “no person belonging the 24th iust., to and including Monday, the 27th inst.
in any such office, or within six calendar months after he shall
have quitted the same, be capable of giving” the Parliamentary THE ARRANGEMENTS for the judge's chamber work of Mr. vote.It was held in Hayward v. Scott (28 W. R. 988), that the Justice Kay and Mr. Justice Stirling during the next sittings will disqualification arising from the receipt of parochial relief does not be as follows:- Vr. Justice Kay will sit in chambers on Tuesday come within sub-section 7 of section 28 of the Act of 1878 so as and Friday afternoons, and Mr. Justice STIRLING (sitting in court) to entitle the revising barrister to expunge the name of a pauper, will take chamber work every Friday.
and an attempt was made to argue that this case governed that of constables. But on reference to section 36 of the Act of 1832,
which applies to paupers, it will be seen that it imposes a disquali. WE PRINT elsewhere a letter with reference to the election under fication only, not an incapacity, so that the cases are clearly clause 6 of the Remuneration Order which furnishes a very im- distinguishable; and, indeed, the word "incapacity” in the Act portant contribution to the discussion on the subject which has of 1878 may be directly referred to, and construed by, the light taken place in our columns. It was taken for granted in Re Allen of the words "no person shall be capable” in the Metropolitan (ante, p. 78) that notice of election to charge on the old system,
Police Act. An argument that the Act of 1878 does not apply, given in writing to the lessor, was a sufficient notice under the on the ground that the incapacity of the constable may be removed clause. And in June, 1884, the Council of the Incorporated Law before the next period of registration, goes to the hardship of the Society held (see Digest, p. 17) that “a lessor's solicitor may and case only, and this hardship is so small that it is hardly worth should, where he desires to elec? under Schedule II., under clause consideration. 6 of the Remuneration Order, give notice to the lessor as the client under the rule; and a lessee entering into a contract for a lease WE HAVE RECEIVED a copy of a correspondence which has must be assumed to know this, and should inquire or stipulate if recently passed between an eminent firm of solicitors and a he wishes to avoid paying under Schedule II.” We also came to the distinguished Queen’s Counsel and his clerk on the vexed conclusion that this is the proper construction of the Remuneration question of refresher fees. It does not seem necessary to introOrder, for the reasons we gave last week, although we fully ad- duce any personal element into the question, for the course mitted the allegation of our esteemed correspondent "E. E. L.," adopted by the learned Queen's Counsel and his clerk is one which that common sense was against our view. Our correspondents "S.," we believe all his brethren in the same rank, and avowedly adopthowever, have now adduced a considerable authority in favour of ing the practice of special fees, would insist upon. On the payment "E. E. L.'s” opinion. It appears that in 1884 Máster Skinrow, of fees relating to a case in which he had been engaged as leading after consultation with other masters, decided that notice by the counsel, his clerk required a refresher fee of twenty.five guineas. lessor's solicitor to the lessor, without notice to the lessee, did not The solicitors, who were acting as London agents for a country make the lessee liable to more than the scale charges for lease and firm, referred to their clients, who repudiated their liability to pay counterpart. . On inquiry we have been favoured with particulars more than ten guineas (the highest refresher fee allowed on taxfrom which it appears that in the case in question the lessor's ation under R. S. C., 1883, LXV., 27 (48)), but expressed their solicitor was not retained by the lessee to prepare the lease, and willingness to pay fifteen guineas. This fee was declined. The solicithat the notice under clause 6 was given by the lessor's solicitor tors do not question the right of the learned counsel or his clerk to to the lessor upon his being first instructed by the lessor, but stipulate beforehand the amount of fees and refreshers, but they was not brought to the knowledge of tho lessee until the contend that, unless this stipulation is made, they and their clients lease and counterpart had been exchanged. The case, in fact, are entitled to assume that the fee named in the Rules of Court is a direct decision by the masters in favour of " E. E. L.'s" would be accepted ; and they point out that the client " is bound view; and although we retain our opinion, and think that to pay that fee only, unless a bargain to pay more has been prethe decision is wrong on the construction of the Order, we viously made.” They do not refer to the resolution of the Council suppose that, until the matter has come before a court for decision, of the Incorporated Law Society in 1883 (28 SOLICITORS' Journal, the master's opinion must be accepted as governing the practice. 167) recommending, with reference to refreshers, " that members But if so another question arises. The decision appears to be only of the society should insist on these fees being limited to that " notice to the lessor without notice to the lessee" is not those allowed on taxation in all cases in which counsel or sufficient. Will notice to the lessee without notice to the lessor be their clerks do not intimate to the solicitor before accepting sufficient; or must notice be given both to the lessor and to the the brief that a larger, and if so what, fee will be exdet? There is certainly some foundation for this view in the pected," but it will be seen that their contention is identical definition of " client ” in the Remuneration Act, which may be read as in purport with this recommendation. We think, however, that
there may be some misapprehension as to the application of the re
REGISTRY WITH GUARANTEED TITLE commendation to the case in question. The Court of Appeal, in Re Harrison (34 W. R. 645), held, reversing the decision of Mr. Justice There is a marked difference between registration with indefeasible PEARSON, that “the authority to give special fees of larger amount title and registration with guaranteed title; the former, adopted than those fixed by the rule may be either express or implied,” in England by Lord Westbury's Act and Lord Cairns's Act, has and we imagine that very little evidence would be necessary to been most unsuccessful, the latter, adopted in Australia, has had a convince a court that a client must know that the services of a marked success. Some of our readers may enquire, What do we counsel of great eminence and skill cannot be obtained without mean by registration with guaranteed title ? It means simply this, paying special fees, and, therefore, must have impliedly authorized that, on payment of a moderate sum by way of insurance, the his solicitor to pay such special fees as might be reasonably necessary State guarantees, not that the title is good, but that on eviction to secure his services. However this may be, the position of a the sum assured shall be paid. Sometimes the guarantee is not solicitor with reference to this matter of refreshers is one of con- in favour of the registered owner, but in favour of any purchaser siderable difficulty. The highest authority in his profession from him ; this modification will, as we shall shew, enable us to · advises him to insist on refreshers being limited to the amounts dispense in all cases with official investigation of title. allowed on taxation, unless counsel or their clerks stipulate to the
Where a man is, rightly or wrongly, registered with an indecontrary before accepting the brief. But counsel and their clerks, feasible title he has an absolute right to the land, he may even rightly or wrongly, do not choose to be bound to stipulate before- be able to eject a person who has bought and paid for the land, hand as to refreshers. They are in no way under the jurisdiction and has himself been registered as owner with an indefeasible of the Council of the Incorporated Law Society, and, in the case of title. This requires some explanation. Let A. be the registered eminent counsel whose services cannot be dispensed with, there are
owner, then let B., by fraud, obtain a conveyance from A., or forge a no means of placing any pressure on them. Under these cir
conveyance to himself from A. (and it must be noted that, whatever cumstances, probably the best practical advice which can be given precautions are taken against fraud, a bad man will sometimes sucis that solicitors, in all cases in which clients insist on an eminent
ceed in evading them); then let B. be registered as owner. In any counsel being retained, should, before delivering the brief, instead
reasonable system of registration A. would be able to have the of waiting for a stipulation as to refreshers, inquire of the counsel's register reformed as against B.; but now suppose that B. clerk the amount of the refresher fee which will be expected,
conveys to C., an innocent purchaser. C. is registered with an and so obviate subsequent disputes.
indefeasible title, A. can have no remedy against C., for, if he had, all the benefit of registration would be lost. In other words, A.
loses his land and is without any remedy. Now, let us consider what THERE WILL BE FOUND elsewhere a circular which has been issued would happen under a system of guaranteed titles. A., as being by the Gloucestershire and Wiltshire Law Society to its members on the person who was rightfully on the register, would keep the the subject of charging purchasers with auctioneers' fees at auction land; C., who had paid his money on the faith of the register sales. It appears that, although the practice of charging contract being correct, would be recompensed by the State or the official fees for the benefit of the vendor's solicitor has been generally insurance fund for the loss that he had incurred. abandoned in the district, there is still in some quarters a disposi The whole system of guaranteed title is discussed at length in tion to retain the old practice of throwing the payment of the an excellent little book on “Registration of Title to Land,” by auctioneer on the purchaser. We think that on consideration the Mr. C. F. Brickdale, * and the rest of this article is founded upon practitioners who still adhere to this custom will see that it is his work. undesirable to place themselves in antagonism to the general It has often been alleged by those who are opposed to registraopinion of the profession by adopting a course to which, in 1878, tion of title that the reason why it has failed in England, though the Council of the Incorporated Law Society recorded" their great it has been successful in Australia, is—(1) the facility with which objection,” and which has been condemned by their own society, titles can be placed on the register in Australia in the first inby the Bristol solicitors, and even by practitioners in the stance owing to their recent origin in a Crown grant; (2) the stronghold of these ancient customs - Cornwall. We are sur ease with which registered land can be described in Australia prised to hear that the practice even of a contract fee to the owing to the Government survey on which the grants are founded; vendor's solicitor still lingers in some parts of England; it ought (3) the prevalence in England of settlements importing difficulty to be abandoned everywhere.
in all registered holdings. Mr. Brickdale points out that these reasons are incorrect-(1) many of the titles in Australia are
more than sixty years old, and, owing to bad conveyancing, the THE SEVERE Attack of cold from which Lord Justice Bowen early titles are often very complicated; (2) the inaccuracy of the has been recently suffering, and which caused his absence from surveys in Australia produces very great difficulty in the way of court on several days last week, has resulted in a strict investiga- registration ; (3) it is not found in Australia that settlements tion into the causes of the wintry blasts to which the judges of produce any difficulty in registration. Recent discussions must Court of Appeal No. 2 are subjected. Means are now to be tried have convinced the most sceptical of our readers that, even in with a view of excluding these mysterious draughts, and it is this country, they would produce no difficulty. to be hoped that ultimately every learned judge may be enabled to As the alleged reasons of the difficulty in registering titles in sit in court without the addition to his official costume of a England exist also to Australia, and there is no difficulty in warm muffler round the neck.
registering titles in that country, it is clear that we must seek some other reasons for the different result in the two countries.
Mr. Brickdale shews conclusively that the reason for the difference Lord Justice Fry will preside at a meeting which will be held on an
is that here we have tried registration with indefeasible title, there early day to consider the ad visibilty of establisbing a society to encourage
they have tried registration with guaranteed title. the study and advance the knowledge of the history of English law.
The practical working of the two systems is very different. is suggested that the society shall be called the Selden Society, and that Under the registry with an indefeasible title the investigation must its object shall include (besides meetings for the reading and discussion of be of the strictest possible character, thus giving rise to expense and translations of works having an important bearing on English legal mischiet done by accepting a bad title is not irremediable, the title
Under registration with a guaranteed title, where the legal iernas, and finally the collections of materials for a history of English need only be investigated in the manner in which it is investigatel law. The following have already expressed approval of the society: -The by an ordinary purchaser. In fact Mr. Brickdale ussures us that Eari of Derby, Lord Herschell, the Home Secretary, the Attorney-General, in Australia the registrar accepts titles rather more easily than an Q.C., F. Meadows White, Q.O., K. "Campbell, P. E. Dove, Hubert Hali, ordinary purchaser does. He says that, in twenty years' experience F. E Sawyer, F.S.A., Professor F. Pollock, John Evans, President, and of the system in South Australia, only'two instances have occurred H. S. Milman, director of the Society of Antiquaries; Professors A. V. Dicey and T. E. Holland, Oxford ; Rev. W. Cunningham, B.D., and
of the register being altered by the court, in both of which cases F. W. Maitland, Cambridge, &c. &c. Professor W. W. Skeat has kindly offered help towards the dictionary. Any person interested may com:
Registration of Title to Land, and how to Establish it without Cost municate with Mr. P. Edward Dove, 23 Old-buildings, Lincoln's-inn.
or Compulsion." By C. F. BRICKDALE, Barrister-at-Law.
would be necessary.
the registered owner was a volunteer, and that not one single made for official searches and the issue of certificates of the results, instance has occurred where the title of a registered purchaser for which are to be conclusive in favour of purchasers. It is necessary value has been disputed. In Queensland, Tasmania, and New to specify in the requisition the names in which searches are to be South Wales, in each of which places the syster has been at work made and all other sufficient particulars. The fees charged are for about eighteen years, no instance has occurred of a title being regulated by the order as to Supreme Court Fees, 1884 (Nos. 112, cancelled. In each of the Colonies of Victoria and New Zealand 114, 115, 118). The order provides for a continuation search, if one title has been cancelled.
requested within fourteen days of any former search. The R. S. C., All over Australia the assurance fund is an ad valorem charge of December, 1882, s. 2, r. 4, also provide for a continuation search one half-penny in the pound, except in Tasmania, where only one under the Conveyancing Act, 1882, to a date not more than one farthing is charged, with the result that, after paying all com calendar month subsequent to the date of the first certificate. pensations, the funds now amount to £180,000.
Length of search in registry of judgments.—The effect of 2 & 3 Mr. Brickdale suggests that in ordinary cases no investigation of Vict. c. 11 is to make five years sufficient in all cases (see ante, p. title, either on the original register or afterwards, should be made 58). by the office; that the investigation should be made, as at present, Against whom to search.—In strictness, as under the old law by a solicitor; and that official investigation should only be made (ante, p. 25), the search should be against all persons who have in cases where he hesitates to say that the title is good. In many been owners of the lands or any interest therein liable to the cases of this nature the title might be accepted on payment of a operation of a judgment for an indefinite period before the larger sum as insurance against an extra risk.
search (Dart V. & P. 484, 491). It is true that judgments are It
may be asked, Will not the liberty to a purchaser to choose his barred by the Real Property Limitation Act, 1874, after twelve own solicitor lead to risk to the office? The answer, worked out years (Ex parte Tynte, 15 Ch. D. 125; Evans v. O'Donnell, 16 with much detail by Mr. Brickdale, is this :—Let the guarantee L. R. Îr. 445), and therefore it might seem that no search for given to the registered owner be, not that his own registered title judgments ought to be necessary now that twelve years have elapsed is good, but that the last preceding registered title is good ; in this since the 27 & 28 Vict. c. 112. But judgments may be kept case a purchaser has just the same motive to employ á careful alive by acknowledgment or payment of interest, though not, it is solicitor that he has at present, as, if the solicitor makes a mistake, submitted, by simply re-registering them; and it would, therefore, the purchaser may lose his land. Possibly it might be possible to be dangerous to assume that a judgment more than twelve years combine both systems of guarantee; to allow a purchaser either to old has been satisfied. However, it is the practice now, as it was be content with investigating the title by his own solicitor, in under the old law (ante, p. 25), to search only in the names of the which case the guarantee would only be that the last title on the vendor and of such of his predecessors in title (except those who register was good, or to require a guarantee of his own title, in had not attained twenty-one on the 29th of July, 1864), as were which case an official investigation as from the last registration not purchasers for value, and the search is not carried back further
than the last purchase or mortgage, reliance being placed upon the Under the proposed
em the first person who registers his probability that proper searches were then made. And a solicitar title receives no guarantee at all, so that there is absolutely no is justified in following the usual practice (see 30 SOLICITO? occasion for any official examination of his title. On the next Journal, 683) unless there are any special circumstances. sug. occasion of a purchase for value, the purchager, on payment of gesting the expediency of a more extended search, which is far the prescribed amount to the insurance fund, obtains a guarantee less onerous than it formerly was, since the period of search cannot of the title first placed on the register, but he obtains no guarantee in any case exceed five years. as to any intermediate voluntary dealings with the property.
The searches to be made are as follows :It is obvious that registration of this pature is not inconsistent (i.) As to judgments entered' up on or before the 23rd of July, with allowing the rights of persons in actual possession of the 1860 (23 f. 24 Vict. c. 38). —Search for five years in the register of property to be paramount to the rights of persons whose titles are judgments in the Central Office. registered, so as not to interfere with the salutary operation of the (ii.) As to judgments entered up after the 23rd of July, 1860, Statutes of Limitation in giving legal validity to the re-adjustment and on or before the 29th of July, 1864 (23 & 24 Vict. c. 112). of boundaries without formal assurance, a process which is con -The like search in the register of judgments appears to be stantly taking place, and which it would be most unwise to necessary, both because (see ante, p. 74) this Act does not interfere with. Those of our readers who take interest in land dispense with the necessity of registering the judgment itself transfer cannot do better than peruse Mr. Brickdale's excellent as well as the process of execution, and also because the register of little book, and judge for themselves whether the system that he executions is directed to be kept in the wames of the creditors. advocates will work well in this country.
It has been stated by the chief clerk of the registrar of judgments (see letter to the SOLICITORS' JOURNAL, vol. 4, p. 864) that the practice was adopted of making in the register of judgments a
reference to the register of executions. (See 6 Jur. N. 8., pt. 2, CONCERNING SEARCHES.
The register of executions must be searched for three months (XVII.) JUDGMENTS.
last past, immediately before completion. II. TAE MODERN Law of JUDGMENTS (continued).
By R. S. C., 1883, LXI., 22, no incumbrances can be registered The searches to be made for judgments. — In formulating practicel after two o'clock p.m., the object being to enable a purchaser to rules as to the searches which ought to be made on behalf of pur- coniplete after that hour in the day without the risk of registration chasers and mortgagees, it will be convenient, in the first instance, by execution creditors. to assume that the vendor is seised in fee simple, and to consider (iii.) As to judgments entered up since the 29th of July, 1864 the searches to be made Having regard to the local situation of the (27 g. 28 Vict. c. 112).—These, as we have seen (ante, p. 90), do property--- i.e. (a.), generally, and (6.) when it is within the regis- not affect purchasers until the lands have been “ actually delivered try counties or the jurisdiction of either of the Palatine Counties in execution.” The difficulty of ascertaining this fact has been of Lancaster and Durham.
already pointed out (30 SOLICITORS’ JOURNAL, 683, 724, 742). General rules : where the property is not affected by the The Act (section 3) directs the execution to be registered after it Registry. Acts for Middlesex and Yorkshire, and is not within has been enforced, and some degree of security may be attained by the palatine jurisdictions.
searching for such registered executions; but no limit of time is Place of search.—The Department of Judgments in the Central imposed within which they are to be registered (see Re Pope, 34 Office (established by the Supreme Court of Judicature (Officers) W. R. 654, per Wills, J.), Act, 1879, s. 4) at the Royal Courts of Justice (see Ř. S. C., Here it may be observed that purchasers and mortgagees should 1883, LXI.).
in all cases make inquiries of tenants or other persons in possesOfficial searches.—Under R. S. C., 1883, LXI., 23, the regis- sion of the lands as to the nature and terms of their holding trar of judgments will, on a request in writing, cause a search to Judgments of Palatine Courts of Lancaster and Durham. be made and issue a certificate of the result ; and by the Convey. - There were formerly four of these courts-viz., the Court ancing Act, 1882, s. 2, and the rules thereunder, full provision is of Pleas and the Chancery Court of Durham, the Court of
Common Pleas and the Chancery Court of Lancaster. By county courts and other inferior courts in England, but, as to these the Judicature Act, 1873 (see sections 16, 77, 78, 92, 99), last, the process of execution can be issued only against "goods the jurisdictions of the Courts of Pleas of Durham and of and chattels." Common Pleas of Lancaster were transferred to the High Court 41 Geo. 3, c. 90, s. 6, enabled decrees and orders of the Irish of Justice, and the officers of those courts were attached to the Court of Chancery to be enforced in England, but only against the High Court. The Chancery Courts of both Durham and Lancaster person (see Seton, 1551). still exist. The judgments or decrees of the palatine courts per se Judgments of inferior courts.-By 1 & 2 Vict. c. 110, s. 22, affect only lands within their respective jurisdictions, and the 1 & 2 judgments, rules, and orders of certain inferior courts of record Vict. c. 110, and the amending Acts above noticed, do not contain may be removed into the superior courts at Westminster, and shall any provision for registration of palatine common-law judgments thereupon be of the same force, charge, and effect as judgments, in the London registry. But by 1 & 2 Vict. c. 110 (s. 18, ante, &c., of the superior courts, and the like proceedings may be taken p. 42), decrees and orders of “courts of equity" are to have the upon them; and by 18 Vict. c. 15, s. 7, they are to be registered effect of judgments in the superior courts of commun law, and a and re-registered, and then to be binding in like manner as the creditor is to have the same remedies upon them ; provided (section judgments of the superior courts (see 2 Chitty's Arch., 14th ed., 19 of the same Act, ante, p. 57) that no decree or order" in any 1569; 2 Dan. Ch. Pr. 1721). court of equity” shall, by virtue of that Act, “affect any lands Judgments, rules, and orders (for sums of £20 and upwards) of as to purchasers unless and until registered in the Common Pleas. courts to which the Borough and Local Courts of Record Act, The 4th section of 2 & 3 Vict. c. 11 (ante, p. 58), as to re-registra- 1872 (35 & 36 Vict. c. 86), has been applied by Order in Council, tion, also expressly applies to decrees or orders “in any court of can be removed (see section 2 and sched., r. 9) into the High equity," and speaks of “ lands” generally; and the 5th eection of Court, so as to have the same effect as judgments of the High the same Act (ante, p. 58), protecting purchasers without notice, Court. By Order in Council of 27th June, 1873, this Act was refers to " such decrees or orders,” and to "any lands"; and the applied to the Tolzey Court and Pie Poudre Court of Bristol, the same observation applies to the provisions (ante, p. 58) of 3 & 4 Courts of Record of Scarborough and Poole and the Salford Hun. Vict. c. 82, and 18 Vict. c. 15, protecting purchasers with notice of dred Court, and some of its provisions, including that for removal unregistered judgments. The terms of these enactments are so of judgments, were applied to the Mayor's Court of London. general as apparently to include decrees and orders of the Pala The five years' search in the register of judgments will, theretine Chancery Courts, and to require them to be registered and re- fore, disclose any judgments removed and registered under those registered in the London registry before they can affect purchases Acts; and by the proviso in section 22 of 1 & 2 Vict. c. 110 (the of any lands, whether within or without the jurisdiction of these proviso was repealed by 18 Vict. c. 15, s. 7, but restored by 38 & courts, and also to protect purchasers in respect of notice, or 39 Vict. c. 66, which repeals the repeal), such judgments, when absence of notice, to the same extent as in the case of judgments removed, are not to affect lands as to purchasers until a writ of of the High Court of Justice.
execution is delivered to the sheriff. The Statutes, 33 Geo. 3, c. 68, s. 1, and 2 Vict. c. 16, s. 28, County court judgments for an amount exceeding £20 may be provided for the removal of judgments, &c., of the Court of removed into the High Court by certiorari, and, when removed, Pleas of Durham and the Court of Common Pleas of Lancaster, have the effect of judgments of the superior courts : 19 & 20 but they have been repealed by the Statute Law Revision Acts, Vict. c. 108, s. 49. °(See Dan. Ch. Pr., vol. 2, p. 1917, 6th ed.) 1871 and 1879.
The county courts themselves have no process of execution by By 13 & 14 Vict. c. 43, s. 15, and 17 & 18 Vict. c. 82, s. 10, which land can be affected: Pitt - Lewis, County Court Pr., 2nd decrees and orders of the Court of Chancery of Lancaster may be ed., 629. They have, however, under 30 & 3i Vict. c. 142, s. removed into the High Court of Chancery, and then be enforced 11, jurisdiction in ejectment where the annual value does not against the parties bound thereby, and all proceedings may be had exceed £20 : Pitt-Lewis, County Court Pr. 736, 747. thereupon as if such decrees or orders had been originally made by By 9 & 10 Vict. c. 95, s. 27, å registry of judgments is directed the High Court of Chancery. (See form of order in Seton, p. to be kept in each county court, and under 15 & 16 Vict. c. 54, s. 1552.)
18, and the Treasury Instructions of June, 1878 (35), a registry There does not appear to be any power to remove judgments of of county court judgments" has been established in London, in the Durham Chancery Court into the High Court of Justice; and which judgments for £10 and upwards are to be entered. The fee we have been informed upon authority that no registry of judg- for search is 6d. for each name.
The County Courts Rules ments or decrees is kept at Durham since the Durham Court of contain a similar provision as to judgments of the City of London Pleas was abolished.
Court. The result seems to be that, so far as any judgments of the Mayor's Court of London.—By 20 & 21 Vict. c. clvii. (Loc. & palatine courts can affect lands out of their jurisdictions, they must Pers.), s. 48, fipal judgments, and any rule or order, whereby any be subject to the same provisions as to registration as judgments of sum of money, costs, charges, or expenses shall be payable to any the High Court, and that the searches to be made are the same in person, may be removed into any of the superior courts, and shall
then become and be of the same force, charge, and effect as a writ Scotch and Irish judgments.—By the Judgments Extension Act, of execution or judgment recovered in, or a rule or order made by, 1868 (31 & 32 Vict. c. 54), judgments of the Courts of Queen's such superior court, “ provided that no such judgment or rule or Bench, Common Pleas, or Exchequer at Dublin, "for any debt, order when so removed shall affect any lands, tenements, or heredamages, or costs,” and decrees of the Court Session in Scot- ditaments as to purchasers, mortgagees, or creditors, any farther Jard, " for the payment of any debt, damages, or expenses,” may than the same would have done if the same had remained a judg. be registered in the Common Pleas at Westminster in the “ Register ment rule or order of the Mayor's Court, unless and until a writ of for Irish Judgments" and the “Register for Scotch Judgments execution thereon shall be actually put into the hands of the respectively; and from the date of registration they are to have sheriff or other officer appointed to execute the same
" (see 2 the sanae force and effect, and the same proceedings may be taken Chitty's Archb. 1571 ; 2 Dan. Ch. Pr. 1920). By 35 & 36 upon them, as if they had been judgments obtained or entered up Vict. c. 86, s. 6, the Mayor's Court can send writs of execution in the English court (see Piggott on Foreign Judgments, 2nd ed., on judgments and orders for sums not exceeding £20 to any county 358; 1 Chitty's Archb. 14th ed., 771).
court within the jurisdiction of which the defendant has any goods It may, therefore, in some cases (as where an owner resides, or or chattels for execution by the high bailiff of the county court. has resided, in Scotland or Ireland) be advisable to search in these registers. By the Order as to Court Fees, 1884, a fee of one shilling this court the provision of rule 9 of the schedule to the Borough
See Order in Council, June 27, 1873, No. 3028, which applies to is to be paid for each name on a search made in one or both of the and Local Courts of Record Act, 1872, as to removal of judgments; Scotch and Irish registers. By the Inferior Courts' Judgments Extension Act, 1882 (45 & W. R. 941, 11 Q. B. D. 120.
Munday v. Pigott, W. N., 1884, p. 57; Paine v. "Slater, 31 46 Vict. c. 31 (see Piggott, For. Judgm. 362), judgments of inferior courts in Scotland may also be registered with the like to the suit for payment of money, costs of suit, charges, or
Stannaries Court.—Decrees, judgments, or orders against a party effect in the register of Scotch judgments in London ; and judg- expenses, may be enforced by suing out, immediately after ments of Scotch and Irish inferior courts may be registered in entry of the decree, judgment or order, a writ of fi. fa. against
.ast '' god
goods and chattels (Procedure of Stannaries Court. By Authority. case I cannot say that the prior incumbrance would have come to the London. 1876. p. 139. Miscellaneous, Ord. II., r. 1). Where ( knowledge of Banks if he had gone to Cousins. Banks has not told the amount exceeds £250, and the judgment cannot bé enforced me anything about it, nor has Cousins.” [The mention of Cousins within the Stannaries, execution may be enforced out of the juris- must have been by inadvertence, as, according to the report, he had diction under 18 Vict. c. 32, ss. 9, 10 (see Seton, 1552 ; 2 Chitty's actually executed the deed to Pepper which, on the face of it, not
been dead several years.] “But I do know this-that Cousins has Archb. 1573).
only does not mention the prior mortgage, but is so framed as to Decrees or orders of Ecclesiastical Courts may be inrolled in the shew that there was no prior incumbrance; and, therefore, if Banks, Chancery Division of the High Court, and then enforced by not having, as I say he had not on the evidence, knowledge of the sequestration against real and personal estate in England (2 & 3 prior deed, had gone to Cousins and asked him, I ought not to infer Will. 4, c. 93, s. 1). See Form in Seton, p. 1552.
That Cousins would have said that there was a prior incumbrance, but rather to infer that Cousins would have answered according to the statements that appear on his own deed. The executors of Pepper,
therefore, have priority in respect of the £500 mortgage and further THE DOCTRINE OF NOTICE AS AFFECTED BY THE charge of £50.” CONVEYANCING ACT, 1882.
It is this latter part of the reasoning that appears to us question
able, bearing in mind sub-section (3), above set out, preventing any (Re Cousins, 34 W. R. 393, 31 Ch. D. 671.)
extension by that section of the doctrine relating to purchasers being WITHOUT questioning the decision in this case, the reasoning by affected by notice. It is obvious that, in the consideration of parawhich it was arrived at appears to us open to comment.
graph (ii.) of sub-section (1), the question first to be considered was, The case was this:-M. Cousins, being entitled under the will of What inquiries ought reasonably to have been made by the solicitor ? W. Cousins to a share in the proceeds of real and personal estate, by Now in Dearle v. Hall (affirmed by Lord Lyndhurst, C.) (3 Russ. 1), deed of the 21st of August, 1871, mortgaged that share to Banks, the leading case on this subject, the point as to the necessity in such his solicitor, to secure £35. M. Cousins again, by deed of the 8th a case as the present of making any inquiry of the vendor (of course of December, 1873, mortgaged his share to Richardson to secure a mortgagor is in the same position) as to incumbrances by him was £150. Banks was paid off out of the £150; was a party to the deed, dealt with. Sir Thos. Plumer, M.R., there said (at p. 19) :-" With and acted professionally for all parties. By deed of the 29th of respect to the circumstance that the question was not put directly to July, 1874, Richardson transferred his mortgage to Drake, Banks Brown, he covenants in the deed of assignment that the fund was acting as solicitor for both parties. It may be assumed, as it was so free from incumbrances; and, consequently, the necessity of making held, that no notice of any of the above-mentioned deeds was given inquiries of him was superseded.” It Mr. Justice Chitty had held, as we to the trustees of W. Cousins' will. By deed of the 18th of June, submit he should have done, on the authority of Dearle v. Hall, that 1875, M. Cousios mortgaged his share to Pepper to secure £300, and there was no necessity for any inquiry of Cousins, he would have by deed of the 5th of May, 1877, made a further charge to secure saved himself the difficulty of determining whether or not, if such £50.
No mention of the previous charge of £150 was made in inquiry had been made, the prior incumbrance would have come to either of these deeds, and there was the usual covenant that Cousins the knowledge of Pepper's solicitor, or, we suppose, of Pepper had good right to assign free from incumbrances. Banks acted as soli- himself. citor for both parties in both these transactions. Pepper died in The difficulty seems insuperable of determining satisfactorily what 1878, and M. Cousins in March, 1881. On the 1st of November, the result of an inquiry not made would have been wbere this result 1881, notice in writing of the mortgage and further charge in favour depended upon the truthfulness of a person whose interest it was to of Pepper was given by his executors to the surviving trustee of w. conceal the truth. Some remarks of Sir J. Romilly, M.R., which Cousins' will. The share of M. Cousins having been paid into court appear appropriate to this point, occur in 24 Beav., at p. 62, under the Trustee Relief Act, and being insufficient to satisfy the where he says :—“With respect to the argument that it was unsecurities of Drake and Pepper, the question to be decided was as to necessary to make any inquiry because it would have led to no result, their priorities.
I think it impossible to admit the validity of this excuse.
JOINT STOCK COMPANIES.
COMPANIES UNDER THE ACTS OF 1862–1883, WITH FORMS AND Sub-section (1). A purchaser (which, under section 1, includes a
PRECEDENTS. BY C. E H. CHADWYCK HEALEY, assisted by PERCY mortgagee) shall not be prejudicially affected by notice of any instrument,
F. WHEELER and CHARLES E. E. JENKINS, Barristers-at-Law. fact, or thing unless-
SECOND AND ENLARGED EDITION. W. Maxwell & Son. (i.) It is within his own knowledge, or would have come to his knowledge if such inquiries and inspections had been made as ought reasonably on Articles of Association, is to a large extent a new contribution to
This book, although called a second edition of Mr. Healey's book to have been made by him ; or
the On the same transaction with respect to which a question of notice the literature of company law. In its altered form it deals, not mehr or of his solicitor, or other agent, as such, or would have come to but embraces also the whole of the law relating to winding up; and, the knowledge of his solicitor, or other agent, as such, if such inquiries were it not that the requirements of all classes have already been so ood inspections had been made as ought reasonably to have been made fully supplied by excellent works on the same subject, we should
anticipate for the new comer a very considerable success. This it in any Stub-section (3). A purchaser shall not by reason of anything in this case deserves ; for it is admirably written, and no labour has been spared section be affected by notice in any case where he would not have been in making it as complete as possible. The cases have been brought so affected if this section had not been enacted.
down to the latest possible date; multiple references to the various Mr.Justice Chitty held that the above section put an end to the doc- reports are supplied in the table of cases, and the index is very good. trine of Hargreaves v. Rothwell, and that the transactions in which Banks The arrangement of the matter strikes us as somewhat peculiar Lepper's solicitor. The learned judge then proceeded to discuss the and precedents under a great variety of headings, with notes apPer meaning of that section, come to the knowledge of Banks as original work, and consists of four chapters only; then follow forms to the knowledge of his solicitor, as such, if such inquiries had been small type. The statutory forms, we may observe, are not printed made as ought reasonably to have been made by the Ilicitor, and as a schedule to the General Order, but are scattered through the he is reported to have said: " Then it is built thalicior would body of the work, being distinguished by an asterisk from the author's have come to the knowledge of Banks, the solicitor for Pepper, as forms. such solicitor, if he had made the inquiries and inspections which he
We have found very little to find fault with in our perusal of these that ought to have been required to be shewn, he says :—"
“In this portance. Take, for example, the following statement in which the