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CASES REPORTED THIS WEEK.
it was further held that no mandamus lay to benchers to admit a
person to the status of student with the view of being eventually In the Solicitors' Journal. In the Weekly Reporter. called, and this although it was admitted that the judges Allen, Re... Cubbon, In the Goods of
to whom the candidate had unsuccessfully applied had no jurisEdenv. The Weardale Iron and Elwes v. Briggs Gas Co. Coal Co..
Harrison, Inre, Parry v. Harrison 196 diction to review the decision of the benchers, which might be, and Flint Coal & Canpel Co. (Lim.), Re 183 Hulkes, In re, Powell v. Hulkes ... 194 had, in the particular case, been given without any reason assigned. Ganlard & Gibbs' Patent, Re
Justices of Lancaster v. NewtonMayor, &c., of London, Ex parte, in-Makerfield Improvemert Com.
In 1834 the benchers of the Inner Temple refused to call Mr. Re The Metropolitan and District missioners Railways Act, 1879
DANIEL WHITTLE HARVEY an attorney. Mr. Harvey, who sat in Kewney v. Attrill Riddell v. The Earl of Strathmore 183
Phillips v. Goff.
...... 197 the House of Commons as member for Colchester, which conReichel v. The Bishop of Oxford.... 184 Shaw v. Smith Sykes (Deceased), Re .... Stanford v. Stanford
stituency returned him six times, brought his grievances Thompson, In the Goods of ........ 184 Swindell v. Bulkeley
189 before the House of Commons, and a Select Committee of that Taylor, In re, Cloak v. Hammond.. 186 House exonerated him from the charge of professional malpractice
brought against him before the benchers, but that august body The Solicitors' Journal and Reporter. the Inns of Court Commission in 1855, and stated that Lord
CAMPBELL had announced his intention of introducing a Bill to LONDON, JANUARY 15, 1887.
curtail the powers of the benchers; and it also appears that the Common Law Commissioners reported, in 1834, that “though the
probity of the persons who fill the benches of the different societies CURRENT TOPICS.
is well known, and although the number of rejected candidates
has been extremely small, yet a power, in the right use of which IN ANOTHER COLUMN there will be found a notice issued by the society is so deeplý interested, ought not to be left without control Incorporated Law Society containing a list of the subjects to be in the hands of persons whose functions are not of a public and taken up in the year 1888 for the final examination of articled responsible kind." The right of appeal to the judges is, we clerks before admission. The effect of this notice is to produce think, amply sufficient to prevent abuse. some, but not very material change. According to the existing arrangements three of the six subjects given are essential to be taken up to give a pass—they embrace real property, common law, and equity. Under the new arrangement the examination is
WE REPORT elsewhere several decisions on the Remuneradivided into the four several heads enumerated in the notice, and tion Order. In one the Court of Appeal affirmed the decision of it is, no doubt, intended that candidates should offer themselves Mr. Justice Kay, in Re Allen (ante, p. 78), with regard to the for examination in all the prescribed heads, and their answers, time at which a lessor's solicitor may elect, under clause 6 of the generally, will, of course, be considered in determining whether order, that his remuneration shall be "according to the present they are entitled to pass. This will plainly give an advantage to system as altered by schedule II.” In discussing that decision those candidates who have had special acquaintance with some of (ante, p. 71) we did not dispute that it might be correct on the the subjects mentioned in those heads of examination which, under facts of the particular case, but we ventured to question the the old system, were not essential, and were not, therefore, in the general rule laid down by the learned judge that, “after a solicitor majority of cases, of any assistance to them.
had accepted any employment, and had done anything therein for which he could make a charge supposing the scale did not apply, it was too late for him to elect to charge according to the system
existing before the General Order came into operation.” This rule Mr. MacNAGHTEN, Q.C., has been made a Lord of Appeal in was not in terms adopted by the Court of Appeal, who laid down Ordinary, and we believe the general impression will be that, a principle much more reasonable in appearance—namely, that the failing the eminent judge to whom, if rumour is correct, the “ business" undertaken ” by the solicitor “as soon as the appointment was first offered, few better selections could have client retained him and he accepted the retainer"; and there are been made. The qualification for the office is fixed by section 6 expressions in Lord Justice Cotton's judgment which might shew of the Appellate Jurisdiction Act, 1876 (39 & 40 Vict. c. 59), by that he meant that the retainer must be “ to attend to the matter which it is enacted that a person shall not be appointed unless he and to undertake the preparation of the lease.” But all the has been the holder for not less than two years [this period was judgments indicate that the court adhere to the strict construcevidently inserted to prevent a repetition of the Collier scandal] tion of " business” adopted in Re Field (33 W. R. 504) and of some high judicial office, or has been for fifteen years a prac- Re Emanuel and Simmonds (34 W. R. 613), and hold that there tising barrister. The term of fifteen years is the same as that can be no division of the preliminary business connected with " fixed for the extinguished offices of Vice Chancellor by 53 Geo. 3, the lease which is included in the scale fee; and, if this view c. 24, and 5 Vict. c. 5, s. 19, and of Lord Justice of Appeal by is to be adopted, there seems to be little practical difference 14 & 15 Vict. c. 83, and exceeds by five years the term fixed as a between the rule laid down by the Court of Appeal and that laid qualification for a judge of the High Court by section 8 of the down by Mr. Justice Kay. Judicature Act, 1873. Mr. MACNAGHTEN will be entitled to sit and vote in the House of Lords so long as he holds the office of Lord of Appeal in Ordinary, and no longer, and his dignity of a Lord of Parliament will not descend to his heirs.
ANOTHER CASE relates to the scale fee “for conducting a sale of property by public auction." Our readers will remember the discussion to which the case of Re Wilson (29 SOLICITORS' JOURNAL,
438, 29 Ch. D. 790) gave rise. In that case the taxing master THE JUDGES have affirmed the decision of the benchers of the disallowed the “conducting fee” to a solicitor, on the ground that, Middle Temple refusing to call a gentleman to the bar. We as an auctioneer and surveyor had been employed, the solicitor had understand that another case of a similar nature will shortly come not " conducted the sale," and the Court of Appeal affirmed the to be heard, and there is no doubt that in the long course of time disallowance, on the ground that “the account of the surveyor's which has elapsed since the benchers of the several inns have had charges showed that many of the things for which he had charged the jurisdiction to call vested in them, very many more
cases ought to have been done by the person who conducted the sale. have occurred than the solitary one which we have been able to consequently, the solicitor had not conducted the sale, and could find in the books. This is Reg. v. Gray's-inn (1 Doug. 354), in uot charge for having done so, the surveyor having done much of which Lord MANSFIELD, after consulting the other judges, laid what he should have done." In that case a fee of five guineas down the rule that no mandamus would be granted to an inn of was paid to the auctioneer for his services in the auction-room, and courtto admit one of their members to the degree of barrister, and the court said that it might be that the fact of a fee being paid to that the only remedy of a person whom benchers refused to call the auctioneer would not disentitle the solicitor to the conducting was to appeal to the judges in the exercise of their “ visitatorial fee," but that it was not necessary to decide that question. In jurisdiction.” In R. v. Benchers of Lincoln's-inn (4 B. & C. 855) Re' Sykes, deceased, which we report elsewhere, the facts appear
to have been that, on a sale under the order of the court, the goods “ to arrive " at a price less than the market value, could solicitor having the conduct of the sale obtained in chambers an the plaintiff reply by proving that the person to whom he had allowance of £23 12s. 6d. for “auctioneer's fees.” According to sold had, by breach of some condition of the contract of sale, the north-country practice, all the arrangements and work pre incapacitated him from insisting on delivery, and therefore he was liminary to the sale were made and done by the solicitor, and the free to sell at the market value? If so, it might happen that, in auctioneer was employed only to offer the lots in the auction-room. addition to the question whether the contract between the plaintiff The taxing master disallowed the “conducting fee” to the and the defendant had been broken, it would be necessary, in order solicitor, on the ground that commission had been paid by the to estimate the damages, to try whether a contract between the client to an auctioneer under rule 11 of schedule I., part I., and plaintiff and a third person had been broken. Mr. Justice CHITTY affirmed this disallowance. It seems probable that the £23 12s. 6d. was commission, and not an agreed fee to the auctioneer; and, if so, there is nothing very novel in the decision. The express words of rule 11 appear to cover the case where the THE RE-ARRANGEMENT of the Ministry has considerably increased solicitor does the preliminary work and the auctioneer gets the the legal element in the Cabinet, no less than five members of commission from the client. If, on the other hand, the £23 12s.6d. which, independently of the English and Irish Lord Chancellors, was an agreed fee, the case seems to shew that, in order to obtain the have been practising barristers. Mr. MATTHEWS belonged to the "conducting fee," the solicitor must not only do the preliminary Oxford Circuit, and Mr. STANHOPE to the Home Circuit, while work, but also himself pay the auctioneer's agreed fee, and it appears Lord CRANBROOK, Lord Cross, and Sir Henry HOLLAND were all that in the case of a sale under the court he is not allowed to do members of the Northern Circuit. Among Ministers of less than this.
Cabinet rank who have been in actual practice at the bar may be mentioned Sir John Gorst, Mr. RAIKES, and Mr. STUART WOKTLEY,
while Mr. Plunket is an Irish Queen's Counsel. THE CASE of Rodocanachi v. Milburn (18 Q. B. D. 67) decides a somewhat important point with regard to the measure of damages. The action was for non-delivery of cargo under a charter-party. The plaintiffs had sold the cargo “ to arrive" at a price less than the ON THE FORM OF MORTGAGE BILLS OF SALE. market value of the goods at the port of discharge at the
III. time when the cargo should have arrived. The Court of Appeal have held that, in estimating the damages for non-delivery, the We resume the series of articles which, after the second article market value must be looked to, not the price at which the plain- (ante, p: 56), was suspended awaiting certain decisions of the tiffs had sold the cargo. We must confess to having felt some Court of Appeal. little difficulty about the point. It will be observed that the Hiring agreement. The decision of the Court of Appeal in The result of this decision is that a plaintiff may absolutely be a North Central Wagon Co. v. Manchester, Sheffield, and Lincolngainer by the breach of contract. The ground on which the court shire Railway Co., delivered on the 15th of December, reversing acted seems to have been that, in estimating the damages in such a the decision of Bacon, V.C. (34 W. R. 430, 32 Ch. D. 477), renders case, a general test applicable to all cases ought to be taken without it necessary to modify very slightly the statement (ante, p.41) as to regard to circumstances peculiar to the parties ; and they relied, the law relating to attempts to evade the Bills of Sale Acts by a sale in support of that view, on the admitted fact that, if the plaintiffs to the lender and a demise back to the vendor, which will be found had sold the goods " to arrive " at a higher price than the market stated correctly in 30 SOLICITORS' Journal, 448. In the case in value, nevertheless they could not have recovered more than the question the wagons belonged to the Blacker Co., subject to a lien market value. We feel some doubt whether this last consideration to the Sheffield Co. for £257. In February, 1884, the Blacker has any bearing on the case. The impossibility of recovering the Co. wanted to raise £1,000. They agreed to sell 100 wagons to excess over the market value in this case depends on the doctrine of the plaintiffs for £1,000 on an arrangement that the plaintiffs remoteness of damage. That doctrine often prevents a plaintiff should let them to the Blacker Co. on a hiring agreement. The from recovering the full amount of the loss he has actually sus hiring agreement was executed on the 18th of February: On the tained; but here the question is whether he can recover more than following day the plaintiffs sent, at the request of the Blacker the full amount. According to that doctrine a plaintiff cannot Co., a cheque for £257 to the Sheffield Co., and a cheque for £743 enhance his damages by reference to circumstances peculiar to (the balance of the £1,000) to the Blacker Co. In the opinion of himself; but the essential nature of the doctrine seems to us to be the court the agreement for sale, followed by sending the cheques, that it imposes a limitation on damages. We do not see that con was a complete sale, not carried out by any document; and its siderations arising from that doctrine have any application when effect was not altered by the documents following :-First, an the proposition is that the plaintiff can recover more than the invoice dated the 18th (but handed to the plaintiffs on the 19th ?) amount of the actual loss he has sustained. We cannot, February, shewing how the purchase-money had been approtherefore, think this consideration so conclusive as the Court of priated. Second, a receipt from the Blacker Co. in the form Appeal seem to have thought it. If their decision is right, it following :—"Received of the North Central Wagon Co. cheque, seems to us that it must depend on the view that it is more value £733, which is placed to your credit, with thanks”-the convenient, on the whole, that a rough general rule should result being that there was no bili of sale. The question being be applied in all cases than that greater nicety should raised whether the receipt was not a “ receipt ” within the definition be sought after by admitting into consideration collateral of" bill of sale” in the Acts, Cotton, L.J , stated that, in order that matters peculiar to the particular case, thereby possibly in an invoice or receipt should constitute a bill of sale, it must be volving issues quite foreign to the main questions in the action, and of which no notice would be given by the pleadings subsequent words "authorities or "licences to take possession of
an assurance of personal chattels,” unless it came within the This decision is obviously a deviation from the general doctrine, personal chattels.” In the present case the evidence showed that which is that a plaintiff is to be put into the same position as if there was a complete contract for sale before either the invoice or the contract had been fulfilled. Such a deviation requires, of receipt was given. Bowen and Fry, L.JJ., concurred, the former course, a reason for existence. We do not think that cases pointing out that the ratio decidendi of Cochrane v. Mathews (10 depending on the doctrine of remoteness of damage can afford Ch. D. 80), Ex parte Odell (27 W. R. 274, 10 Ch. D. 76), E. such a reason, for that doctrine seems to us be a doctrine the parte Cooper (10 Ch. D. 313) was that certain documents ought to scope of which
the protection of defendants from undue be read together, and that, when they were read together, they liability. If such a reason can be found, it seems to us that it amounted to an must be found elsewhere; and we think it may perhaps be found ante, p. 41.)
of the chattels. (See this discussed in the direction we have suggested- viz., by considering the practical inconvenience which would arise if à tribunal vere to be the Acts, but the form in the schedule to the Act of 1882 shews
Provisione as to payment. These are not given in the body of obliged to take cognizance of circumstances peculiar to the plain- that the rate per cent. per annum and the time of payment must tiff instead of applying one universally applicable general rule. be specified. For instance, if a defendant proved that the plaintiff had sold the Notwithstanding that the rate of interest is to be stated " per
annum," a statement of the rate per month is sufficient : Lumley v. hereby secured”: Bianchi v. Orfford (17 Q. B. D. 484), the bill of Simmons (34 W. R. 759). Apparently, if no rate of interest is sale was held to be invalid. specified, but a fixed sum is to be paid as interest, the bill is bad : see Myers v. Elliott (16 Q. B. D. 526), in which the decision in Thorp v. Cregeen (33 W. R. 845), upholding a bill of sale in this form, was disapproved of; the last-mentioned case and Wilson v.
CONCERNING SEARCHES. Kirkwood (27 SOLICITORS' JOURNAL, 296 ; same case, W. N., 1883, 40, 44) must be considered as overruled. The reservation of com
(XX.) WHAT SEARCHES ARE USUALLY MADE. pound interest renders the bill of sale void : Goldstrom v. Taller- We have already, in explaining the nature of the different things that man (17 Q. B. D. 80), reversed on appeal on the construction only, can be discovered by a search, pointed out what are all the searches 14th of November, 1886, so that the case is still an authority on that can possibly have to be made; we now proceed to consider the point for which it is cited.
what searches are usually made in practice. This is a very diffiThe principal may be made payable by instalments, notwith- cult task, as the practice is not uniform in all offices; it is constanding that it is provided that on default of payment of any stantly changing, and there are no judicial decisions as to what instalment, they shall all become due : Lumley v. Simmons (34 are the proper searches. W. R. 759).
There is a preliminary question, Whether it is worth making The direction that the stipulated time of payment shall be stated any searches ? That eminent conveyancer, the late Mr. Dicey, is imperative. “The words of the statute and schedule are, perhaps, once stated to the present writer, “I must say that my own not clear ; they may well include a time fixed by reference to any opinion is rather against the utility of searches, except in Middleknown event; they may, perhaps, include a time to be ascertained sex, Yorkshire, and for bankruptcies. But in the case of a mortby the happening of some contingency; but they do not, in our gage, at least, I think it safer to adhere to the established practice opinion, include a time to be ascertained by nothing but the mere as to searches.” A solicitor who holds an important official choice and volition of the holder of the bill of sale,” per Fry, L.J., appointment, in the exercise of which he has constantly to make Hetherington v. Groome (13 Q. B. D., at p. 792), in which case it was very small transactions in land, told the writer that the expense held that an agreement for payment on demand” rendered the of the usual searches would sweep away all his costs, and perhaps bill of sale void : see also Clemson v. Townsend (1 Ca. & El. 418), put him out of pocket in purchases of this nature, and that therefore Mackay v. Merritt (34 W. R. 433), Bianchi v. Offord (17 Q. B. D. he invariably omitted them, running the risk of an action for 484), Melville v. Stringer (13 Q. B. D. 394), Sibley v. Higgs (15 negligence (see 30 SOLICITORS' JOURNAL, 683). Notwithstanding Q. B. D. 619). The case of Davis v. Usher (12 Q. B. D. 491) these remarks it is the usual practice to make searches, restricted must be considered as overruled. Notwithstanding the opinion of in the manner that we shall point out. Fry, L.J., stated above, it is now decided by the unanimous opinions of Lord Esher, M.R., Lindley, L.J., and Lopes, L.J., that
SEARCHES MADE BACK TO LAST PURCHASE. the time of payment being uncertain avoids the bill of sale : Hughes Some years ago it was the custom to search against every Little (35 W. R. 36).
person mentioned in the abstract who had been owner. As Bill of sale given by way of indemnity.—Sometimes a bill of above mentioned, this practice is still followed by some firms sale is given in consideration of the grantee becoming a guarantor as to searches in register counties, but perhaps the more usual for the grantor to a creditor; in this case the sum secured by the plan is to search against the last purchaser on sale and all bill of sale is payable at (or at some time determined by relation to) persons claiming under him. This practice is practically, safe, the time when the grantee pays the original creditor, and the owing to the great probability that, in ordinary cases, similar amount secured by the bill is the amount so paid by him. A bill searches were made on the occasion of the last purchase, and of sale of this nature is void for two reasons (Hughes v. Little, 35 that either nothing was discovered on that occasion, or that W. R. 36, reversing 17 Q. B. D. 204)—
if anything was discovered it was satisfactorily disposed of. First, the liability of the grantor to pay the grantee arises on On the other hand, if there were special circumstances attending the failure of the grantor to pay the original creditor, and may not the sale—as, for instance, where, though it was nominally å arise at all, so that the time of payment is uncertain.
sale for value, it was really a part of a family arrangement ; or Secondly, the amount that the grantee has to pay to the original where it was a sale of a small plot to enable a landowner to round creditor, and therefore the amount that the grantor has to pay to off his property, we cannot feel certain that the proper searches the grantee, is uncertain.
were made; and therefore in cases of this sort we ought to carry the It also may, as in Hughes v. Little, be void as not being in searches further back. As, however, cases of this sort are rare, accordance with the statutory form.
we shall, in these articles, assume that the searches are to be Provisions as to the maintenance or defeasance of the security: carried back to the time of the last purchase on sale. It may be The prescribed form authorizes the insertion of " terms as to in- asked, why do not we content ourselves with carrying back the surance, payment of rent, or otherwise, which the parties may agree searches to the last mortgage ? There are two reasons. First, we upon for the maintenance or defeasance of the security.”
can never be sure that a mortgage was not given to secure an Insurance.—An agreement that the grantor shall insure against antecedent debt, in which case the mortgagee might omit the fire, pay the premiums, produce and deliver to the grantee the receipts searches ; secondly, if the security is ample, a mortgagee might for the premiums; that, on his default, the grantee may insure; that reasonably omit to search for charges of the nature that we disall
moneys paid by the grantee for that purpose shall be repaid to cussed 30 Solicitors' JOURNAL, 699, 714, which are often called him by the grantor on demand, and, till payment, shall be charged terminable charges. It is, however, right to point out that some with interest on the premiums, does not avoid the bill of sale: practitioners of eminence only search since the last mortgage. Hammond v. Hocking (12 Q. B. 'D. 291), Ex parte Stanford, Re Where a vendor or mortgagor has in his possession a certificate Barber (34 W. R. 507, 17 Q. B. D. 259). In these cases the of an official search made under the Conveyancing Act, 1882, it grantor had power to repay to the grantee any moneys paid for ought to be shewn on the abstract. insurance whenever he liked, and the rate of interest was £5 per cent. per annum.
LOCAL AND PERSONAL ACTS. On the other hand, where the moneys were to remain a charge during a fixed period at £20 per cent. per annum,
There is, unfortunately, a practice growing up, but to what the provisions were held to invalidate the bill of sale : Goldstrom extent we cannot say, of passing Local and Personal Acts authorizv. Tallermann (34 W. R. 459, 17 Q. B. D. 80).
ing a company or some public body to improve buildings within Rent, rates, and taxes. — Where there were covenants by the a limited area, and to make, perhaps with the consent of the grantor to pay rent, &c., to produce receipts for rent, and that on Chancery Division, a charge, generally of a terminable nature, on breach of any covenant by the grantor, all the moneys secured the property for the amount expended. See, for example, the should become due : Davis v. Burton (31 W. R. 523, 10 Q. B. D. " Improvement of Buildings Act (23 & 24 Vict. c. exix.) (Local 414, 32 W. R. 423, 11 Q. B. D. 537), and where, iť the grantor and Personal), authorizing the company thereby incorporated to neglected to perform his covenants as to rent, &c., the grantee improve buildings in the following districts : - First, the London might do so, and that the sums so paid by him · should be re- district, comprising all lands situate within a distance of fifteen coverable in the same manner as the principal moneys and interest miles, measured in a straight line, from any part of St. Paul's
Cathedral; Second, the Liverpool district, comprising all lands been imposed on agricultural land which becomes building land situate within a distance of ten miles, measured in a straight line, before the charge expires. It might be thought that no searches from any part of St. George's Hall, Liverpool ; Third, the Man- need be made for any terminable charges as to land within a town, chester district, comprising all lands situate within a distance of but this is not the case ; one of the large London properties is ten miles, measured in a straight line, from any part of the subject to charges of this nature. Exchange at Manchester; Fourth, the Birmingham district, comprising all lands situate within a distance of ten miles, measured SEARCHES AS AFFECTED BY THE NATURE OF THE PROPERTY. in a straight line, from any part of the Town Hall at Birmingham. Copyholds.—It has been said (1 Bythewood, by Sweet, 3rd The repayment by instalments of the money advanced by the ed., 103; Hansard v. Hardy, 18 Ves. 462; Bugden v. Bigcompany for the purposes of the Act may be charged on the land, rold, 2 Y. & C. C. C., at p. 390) that the court rolls of a with interest, by an order of the Chancery Division.
manor are not notice to a purchaser. On the other hand, Reference must also be made to the “Chambers and Offices Act, Leach, V.C., says, in Pearce v. Newlyn (3 Madd., at p. 188), 1881” (44 & 45 Vict. c. clxxxii.) (Local and Personal). This en- that “a purchaser is affected by notice of the court rolls as far ables " the Chambers and Offices Co.” to acquire common rights,” back as a search is necessary for the security of the title." These as defined in the Act, over buildings laid out in flats, chambers, conflicting dicta may perhaps be reconciled, as meaning that or offices, and situate in the County of Middlesex, the Borough of the court rolls may be considered to be notice to a purchaser Southwark, the City of London, the Liberty of the Rolle, who searches, but not to one who does not. As it is imor in the Parish of Hove near Brighton. “Common rights” possible to rely with safety on want of notice, it is now include the site of the roads, paths, entrances, staircases, pas- the invariable practice, notwithstanding the remarks of Lord sages, &c., the roof, chimneys, and outer walls, the rights of St. Leonards above referred to, to search the court rolls. light and air and other easements over adjoining property, lifts It should be observed that in some manors a surrender made and machinery provided for the general use of the building and out of court may be presented at any time, and an admitoccupiers, laundries, baths, lavatories, kitchens, closets, &c., fittings tance taken thereon, so that a subsequent incumbrancer or and appliances connected with the supply of hot and cold water, purchaser may be ousted by the existence of a surrender which soil pipes, drains, and apparatus connected with soil drainage, rain he cannot discover by searching: Horlock v. Priestley (2 Sim. 75). water, and other things mentioned in the Act. The company has It will be remembered that no searches for Crown debts or execugeneral powers to enter and repair, to pay general expenses, tions at the suit of the Crown can be required on the purchase of which include insurance against fire, the performance of the lessee's copy holds : 30 Solicitors' JOURNAL, 770. No searches need be covenants where the building is leasehold, the payment of rates and made under the Middlesex, Yorkshire, or repealed Yorkshire Registaxes, the costs of lighting and warming the building, the costs of tries Acts. All other searches should be made that would be painting and repairing, and of new works, wages of servants, the required in the case of freeholds. costs of enforcing bye-laws and recovering penalties, and of some Leaseholds.--Searches on the purchase of leaseholds will be the other matters. All the several tenements are to pay a proportion- same as those on freeholds with the following exceptions... It will ate share towards the “general expenses,
,” and the owner or be unnecessary to search :-(1) for charges under the Public Money occupier of each tenement is to pay special expenses” incurred Drainage Acts and the Private Money Drainage Act, 1849, unless with respect to his tenement as certified by the surveyor of the the lease is for a life or lives, or for years, for a term originally company. The proportion of general expenses and also the special greater than fourteen years, and the rent does not exceed two-thirds expenses payable to the company in respect of each tenement is to of the clear yearly value at the time when the lease was granted ; be a debt due to the company " from the owner and also from the (2) for charges under the Improvement of Land Act, 1864, unless occupier of the tenement,” and is made a charge on his holding; the lease is on life or lives renewable, or for years, for a term of the company, besides its remedy by action, may recover the amount twenty-five years at least or renewable.
In these cases the by distress, entry and receipt of rents, and appointment of a re- leaseholder and the person in receipt of the rents and profits ceiver, leasing an unoccupied tenement, and may enforce their together make up the "landowner," and must be searched against. charge in the same manner as if the owner had agreed in writing Inquiry must be made from the sheriff whether any writ of fi. fa. to make a mortgage to the company for the amount due; the charge against the vendor is in his hands, but it will not be necessary to is to take priority orer all other charges created after the tene- inquire as to elegits. ment has become subject to the Act. The company may delegate Advowson.—Ăn advowson in gross cannot be taken in execution, their powers to a committee appointed by the owners and occupiers as it yields no profits : see Robinson v. Tonge (3 P. W., at p. 401); of the tenements. No provision is made for the registry of the Westfaling v. Westfaling (3 Atk., at p. 463). It followed that, charges. Having regard to the heavy burden thrown on the owners although, after the passing of 1' & 2 Vict. 6. 110, an advowson and occupiers of tenements in a building subject to the provisions became liable to the charge created by a judgment under section of the Act, no prudent person will purchase, take a lease, or even 13, the charge cannot arise, probably on a judgment entered up go into occupation of chambers, in places where the Act applies, on or after the 23rd of July, 1860, and certainly not on a judgment without inquiring whether the building of which the chambers entered up after 27 & 28 Vict. c. 112, owing to the impossibility form a part is subject to the provisions of the Act ; fortunately the of delivering the advowson in execution. Probably an advowson inquiry is easy, as the company is bound to keep posted up at or appendant can be taken in exe tion with the manor. near the principal entrance a notice that the building is subject to son in gross can, however, be extended at the suit of the Crown. the provisions of the Act. The omission by the company of keep From the nature of an 'advowson it cannot be liable to drainage ing the notice up does not appear to prevent them from exercising or improvement rent charges. It follows that, on the sale of an the powers conferred on them by the Act. Reference may also be made to the Act regulating New-square, Crown debts, executions at the suit of the Crown, bankruptcies,
advowson in gross, the only searches that are necessary are for Lincoln’s-inn (23 & 24 Vict. c. clxxxiv.) (Local and Personal), lis pendens, 'annuities, and in the local registers. It it has only imposing rent charges on certain chambers therein, imposing been lately'severed from the manor, the same searches may have restrictions on the user thereof, and charging the expense of rebuild to be made up to the time of severance as if the manor itself was ing chambers in certain cases on the inheritance. We shall not being sold. attempt to deal with charges created by Local and Personal Acts, as their existence can only be ascertained by local inquiries.
Rent charge.—A rent charge can be taken under an elegit : WHAT DETERMINES THE NATURE OF THE SEARCHES.
2 Cruise, 52, citing Moo. 32, pl. 104, and Noy. 104 (the latter The searches to be made depend-(1) upon the nature of the same searches for judgments and executions must be made on the
reference is incorrect), 1 & 2 Vict. c. 110, s. 11, and therefore the property; (2) upon the nature of the interest dealt with, and, purchase of a rent charge as if it was land. perhaps, slightly upon whether the transaction is a sale or a mort It should be remarked that, although drainage or improvement gage. No one purchasing a house in a town would inquire whether it whether they are made before or after the creation of the rent
rent charges cannot be charged on the rent charge itself, stil), as, was subject to a charge under the Agricultural Holdings Act. Charge, they generally have priority over it, it may, in case the There may be some exceptions to this, for as towns grow very rent charge nearly amounts to the annual value of the land, be rapidly it is quite possible that a charge of this nature may have advisable to search for them.