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true construction of rules 1, 5, and 6, read together, the district registrar CASES OF THE OF THE WEEK.
had jurisdiction to make the order which he had made in this case.
COUNSEL, Montague Lush; Carrington. SOLICITORS, Shaw, Tremellen, f Court of Appeal.
Kirkman ; Sims of Symes.
[Reported by F. G. RUCKER, Barrister-at-Law.] J. S. FIELDING & Co. (LIM.) v. CORRY AND OTHERS. No. I. 13th Nov.
DAWSON V. THE AFRICAN CONSOLIDATED LAND AND TRADING BILL OP EXCHANGE-NOTICE OF DISHONOURBILLS OF EXCHANGE Act,
CO. (LIM.) No. 2. 10th Nov. 1882, s. 49, SUB-SECTIONS 12, 13.
COMPANY - DIRECTORS - QUALIFICATION – CASUAL VACANCY CALLS ON This was an application for judgment in an action tried before Ridley,
SHARES-INVALIDITY. J., and a jury. The plaintiffs sued as indorsees and holders of a bill of exchange for £120, dated the 7th of July, 1894. One of the defendants,
Appeal of the defendants (other than A. Bifeldt) from an order of Mrs. L. E. Edwards, was sued as the indorser of the bill to the plaintiffs. Ridley, J. (sitting as Vacation Judge), who granted an injunction resMrs. Edwards's defence was that she had no due notice of the dishonour training the defendant company, and the three other defendants, Thomas of the bill. Shortly before the bill matured the plaintiffs handed it to Thompson, A. B. Nielsen, and E. G. Sanders, until judgment in the their bankers, the Cardiff branch of the County of Gloucester Bank, in action or further order, from forfeiting, or declaring forfeited, all or any order that it might be sent up to London and presented at the National portion of the shares held by the plaintiff and the other shareholders in Provincial Bank of England, at which bark it was payable. The Cardiff the company, and from selling, or allotting, or otherwise disposing of, branch of the County of Gloucester Bank forwarded it to their agents, such shares, or any of them, and from taking or continuing proceedings to the London and Westminster Bank, by whom it was duly presented on
recover the amount of the alleged call of 3s. on each share which had Saturday, the 10th of November, 1894. The bill having been dishonoured, been made, or alleged to have been made, by the defendants Thompson, the London and Westminster Bank gave notice of dishonour on Monday, Nielsen, and Sanders, and from parting with any proceeds of the cali the 12th of November, to the County of Gloucester Bank, but by mistake money in their bands, or to be received under the call. The resolution they addressed the notice to the Cirencester branch of that bank, and not making the call was alleged to be invalid because Nielsen, who had been a to the Cardiff branch. On the next morning, having found out their director and purported to be one of the directors making the call, had mistake, they sent notice of dishonour by telegraph to the Cardiff branch. ceased to hold any shares from the 17th to the 23rd of June, 1897, and It appeared that the Cardiff branch duly gave notice to the plaintiffs, had never been formally re-elected a director after again acquiring his and the plaintiffs duly gave notice to the defendant. The defendant, qualification. Further objection was made because Thompson was stated however, contended that she was entitled to rely on any failure to comply to be an undischarged bankrupt at the date of his appointment, and with the requirements of the Bills of Exchange Act, 1882, with regard to therefore vacated his seat on the board immediately on his appointment. By any link in the chain of notices, and that the London and Westminster article 90 of the articles of association the number of directors was to be Bank had not given notice to their principals in accordance with those not less than three, nor more than seven ; and by article 93: “No person, requirements. Section 49 of the Bills of Exchange Act, dealing with other than the first directors, shall. be qualified to be a director who is notice of dishonour, provides as follows: “ (12) The notice may be given not the holder of shares of the company of the nominal value of £200.” as soon as the bill is dishonoured, and must be given within a reasonable time Article 96 : “The office of a director shall be vacated
if he thereafter. In the absence of special circumstances notice is not deemed to become bankrupt, or suspend payment, or compound with his creditors have been given within a reasonable time unless (6) where the person
or if he cease to hold the required amount of shares to qualify giving and the person to receive the notice reside in different places, the him for office.” Article 105: “Until otherwise determined two directors notice is sent off on the day after the dishonour of the bill, if there be a post shall be a quorum.” Article 114: “All acts done at any meeting of the at a convenient hour on that day, and if there be no such post on that day, directors, or of a committee of directors, or by any person acting as a then by the next post thereafter. (13) Where a bill when dishonoured is director, shall, notwithstanding that it shall be afterwards discovered that in the hands of an agent, he may either himself give notice to the parties there was some defect in the appointment of such directors or persons liable on the bill, or he may give notice to his principa). If he give notice acting as aforesaid, or that they, or any of them, were disqualified, be as to his principal he must do so within the same time as if he were the valid as if every such person had been duly appointed and was qualified holder, and the principal, upon receipt of such notice, has himself the to be a director." same time for giving notice as if the agent had been an independent
THE COURT (LINDLEY, M.R., and CHITTY and VAUGHAN WILLIAMS, holder. (14) Where a party to a bill receives due notice of dishonour, he L.JJ.) allowed the appeal. has, after the receipt of such notice, the same period of time for giving
LINDLEY, M.R., said that the various suggestions of irregularity, when notice to antecedent parties that the holder has after the dishonour." examined, were nothing more nor less than small irregularities; there was Ridley, J., thought the requirements of the statute had been sufficiently no radical defect in any one of the points. There were originally three complied with, and gave judgment for the plaintiffs. The defendant directors appointed by the proper parties, the subscribers to the memo appealed.
randum of association, they were Bradford, Sanders, and Griffiths. Brad. THE COURT (A. L. SMITH and Rigby, L.JJ., COLLINS, L.J., dissenting), ford died on the 13th of April, 1897, and Thompsou was appointed dismiseed the appeal.
director in his placo under an article which clearly authorized the A. L. SMITH, L.J., said the person to give notice in this case was the appointment, subject to the point that he was an undischarged bankrupt. London and Westminster Bank, and they gave notice to the right per- There was a casual vacancy which the other two directors had power to sons-viz., the County of Gloucester Bank, on the proper day, but they fill. There was a me ing of shareholders afterward and Thompson addressed that notice to the Cirencester branch instead of to the Cardiff then retired and was re-elected. The clause relating to the bankruptcy of branch. They found out their error in time to enable them to send notice
a director did not apply to the facts with which the court had to deal, and by a telegram on the next day, and that telegram was received by the it appeared to his lordship to be perfectly competent for the shareholders, Cardiff branch as soon as a letter posted on the previous day would have if they chose, to appoint Thompson. Nielsen was appointed in succession been received. He thought that the sending of the two notices ought to be to Griffiths, who died in December, 1896. That was all right, and Nielsen treated as one continuing act, and that the first mistake in the address did remained a properly-qualified director until the 17th of June, 1897, when not avail the defendant. In his opinion, therefore, the judgment of it appeared he had transferred all his shares, and for five or six days, from Ridley, J., ought to stand.
the 17th of June to the 23rd of June, he had no shares. So under one of RIGBY, L.J., concurred.
the articles of association he vacated his office. On the 23rd or 24th of COLLINS, L.J., thought that the different branches of a bank ought not June he acquired other shares, and became qualified. There was a meetto be treated as one and the same person, but as different persons, for the ing of the directors on the 24th of June at which he was present, and purpose of receiving, notice of dishonour of a bill of exchange. In his acted as a director. There was a casual vacancy which the other two opinion, therefore, the first notice was sent to a wrong person, and could directors had power to fill up, and although they did not go through the not be relied on at all. And the notice by telegram was clearly not sent form of passing a resolution appointing him a director, they accepted him off within the time required by the Act. The whole of the law as to notice
as a director, and allowed him to act as one, and when this call, which of dishonour was technical and arbitrary, but it seemed to him that the Sanders, and Nieleen ; Nielsen then being a properly-qualified director:
was impeached, was made on the 23rd of June it was made by Thompson, defendant had shewn a break in the chain of notices, of which she was entitled to avail herself.-COUNSEL, Woodfin; Ashton Cross and R. Edmondson. If that was not an irregularity in his appointment such as was attempted SOLICITORS, G. J. Brooklesby; Windybank, Samuel, f. Behrend.
to be cured by article 114 his lordship could not conceive what was. It [Reported by F. G. RUCKER, Barrister-at-Law.]
would be reducing that article to a nullity to say that it did not apply to
such trumpery defects and trivial irregularities as those they had to deal TOWNEND V. KIRKHAM. No. I. 15th Nov.
with here. It was said that on account of The Howbeach Coal Co. v. PRACTICE – JURISDICTION OF DISTRICT REGISTRAR-ORD. 35, RR. 1, 5, 6.
T'eague (5 H. & N. 151) the court must hold that the article (114)
did not apply to such a case as this. His lordship explained that that This was an appeal from an order of Day, J., at chambers. The action case did not warrant the contention that the article did not apply to calls was commenced in the District Registry of Manchester. The defendant and things of that kind as between the company on the one side and the having made default in appearance, the plaintiff signed judgment. On shareholders on the other. Another point taken here, and not in the the application of the defendant, the district registrar made an order set-court below, was that the calls had been made for an improper purpose, ting aside the judgment on the ground that it had been entered for a and not for the purpose of bond fide carrying on the business of the comlarger sum than was really due to the plaintiff. On appeal Day, J., set pany, for the purpose of recouping the persons who had paid off the aside the order of the district registrar on the ground that it was made promoters under agreements which were sought to be rescinded. The without jurisdiction. The defendant appealed. The case of Hood f Sons evidence was far from sufficient to enable the court to grant an injuncv. Yates (1894, 1 Q. B. 240) was cited.
tion. The appeal must be allowed and the order discharged with costs THE COURT (4. L. SMITH, RIGBY, and COLLINS, L.JJ.) allowed the appeal. here and below. They thought that, notwithstanding rule 1 of order 35 spoke of proceed Chitty and VAUGHAN WILLIAMS, L.JJ., gave judgment to the same ings being taken in a district registry down to final judgment, yet on the effect. Appeal allowed.-Counsel, Alexander, Q.O., and W. Higgins ;
Bramwell Davis, Q.C., and Stewart Smith. SOLICITORS, Burgoyne, Watts, & college for cadets. The plaintiffs alleged (par. 12 of the statement of Co.; Wyatt, Digby, & Co.
claim) that the defendants had entered upon a portion of the estate and [Reported by W. SHALLCBOSS GODDARD, Barrister-at-Law.]
had placed certain stakes thereon, with a view to the acquisition of the site for the training college, and (par. 17) that the defendants had, by their servants and agents, wrongfully entered upon the property, and surveyed and staked out the site, and threatened and intended to take
possession, and they alleged that the defendants contended that they had High Court-Chancery Division.
statutory powers of compulsory acquisition, which they threatened and MUDDOCK V. BLACKWOOD. Kekewich, J. 16th Nov.
intended forthwith to exercise, and (par. 18) that they, the plaintiffs, were
advieed that the defendants had no right, either by statute or otherwise, COPYRIGHT-INFRINGEMENT-ACTION ON The Case-Action of DETINUE, to enter on the land, &c., or to acquire it by compulsory purchase. The
ACTION OF TROVER-INJUNCTION, DELIVERY UP, AND DAMAGES—Copr. defendants admitted that the site had been surveyed and marked out, but RIGHT Act, 1842 (5 & 6 VICT. C. 45), ss. 15 AND 23.
denied that they or any of them had done the acts complained of, and they This was an action by the registered proprietor of the copyright in and alleged that what had been done bad been duly performed by the officers author of a work called “A Wingless Angel" against the defendants, of the Lords of the Admiralty acting by the direction of the Executive who were publishers, cluiming an injunction restraining them from pub? Government under the Crown. They submitted that the Lords of the lishing reprints of the plaintiff's work, delivery up of all copies in the Admiralty were entitled to exercise by statute compulsory powers. They, defendants' possession, an account of profits made by the defendants by however, raised a preliminary point of law-namely, that the court had no 1 be infringement, or alternatively damages in respect of the infringement jurisdiction to entertain the action. The plaintiffs asked leave to amend, with an inquiry as to the amount thereof, £250 damages for conversion as if necessary, by also suing the defendants individually, and by adding in an action of trover, and costs. Two actions had been begun originally, as parties two marines and a civil engipeer who had staked out the one in the Chancery Division claiming an injunction, an account, and site. The plaintiffs had also taken out a summons for the delivery delivery up; the other in the Queen's Bench Division claiming damages of interrogatories with a view of ascertaining, by whom or by whose under section 23 of the Copyright Act, 1842, for wrongful conversion of directions the alleged wrongful acts were done. The preliminary copies of the book unlawfully printed without the plaintiff's consent. The point of law and the plaintiffs' summonses now came on to be heard. latter action was transferred to the Chancery Division, and the two actions It was contended for the defendants that an action of tort could not be were subsequently consolidated; the claim in the consolidated action being maintained against the Ministers of the Crown as such, and that this was as first above mentioned. The defendants had bought the stereotyped the character of the action. Such proceedings against persons acting in an plates of the work at a public auction in 1886 and had used them without official capacity should not be allowed to be amended by turning them complaint until 1896. T'he plaintiff had not published the book since into new proceedings against the same persons as being private persons. 1875. Prior to the Queen's Bench action the defendants had offered to For the plaintiffs Walker v. Baird (1892, A. C. 491, 41 W. Ř. Dig. 62) was submit to an injunction, to pay £10 as damages, to deliver up their copies cited. of the book and pay the costs, but the plaintiff had refused the offer. Nov. 4.-ROMER, J.-The only question, to my mind, is whether this is Counsel for the plaintiff relied upon section 23 of the Copyright Act, 1842, not a case in which an amendment ought to be allowed. It appears to and submitted that the remedies given by it were not alternative, and me if any person commits a trespass (I use that word advisedly as meanthat he could sue both in detinue and trover. On behalf of the defendants ing a wrongful act or one not justiðable) he cannot escape liability for it was argued that the remedies were alternative and that section 23 was the offence. He cannot prevent himself from being sued merely because inconsistent with section 15, which rendered the offender liable to a special | he acted in obedience to the order of the Executive Government or of any action on the case, which was the proper remedy in the present instance, officer of State, and it further appears to me, as at present advised, if the and the following cases were referred to : Pike v. Nicholas (18 W. R. 321, trespass had been committed by some subordinate officers of a Government 5 Ch. 251), Colburn v. Simms (2 Hare 543), Delfe v. Delamotte (3 K. & J. department or of the Crown by the order of a superior official, so that the 581).
trespass was caused by the order and was in substance the act of the KEKBWICH, J., said it was strange that in the year 1897 he should be superior official, that superior official, even if he were the head of the called upon for the first time to say what was the meaning of section 23 Government department in which the subordinate official was employed, of the Copyright Act, 1842, and whether the remedy given by that section or whatever his official position might be, could be sued, but in such case was inconsistent with the remedy given by section 15 of the same Act. the superior official could be sued not because of, but despite of, the fact There did not appear, however, to be any decision upon the question. that he was an officer of State. I think it is clear that the head of a Two points bad been raised. The first was that as section 15 gave the Government department is not liable for the neglect or torts of officials of proprietor a special action on the case, that was the remedy which he was the department unless it could be shewn that the act complained of was intended to pursue except so far as his remedies at law were not inter- substantially the act of the head himself, in which case he would be liable fered with, and that, therefore, the 23rd section, which gives certain as an individual, as a stranger committing the act would be. rights of action, must be construed as meaning something entirely Nov. 13.-ROMER, J., said that the above were the principles of law different; that the offender under section 23 was a differert person from applicable to the case. The result was that the plaintiffs could sue any of the offender under section 15-in other words, that section 15 contem- the defendants individually for trespasses commiited or threatened by plated a person who bad" unlawfully printed or imported,” while section them, but they could not sue the defendants as an official body. Was the 23 contemplated a person who was the accidental possessor of an infring- present action one against the defendants as individuals ? His lordship ing book. This certainly was a possible view, but the language of the two came to the conclusion that it was intended to be and was a claim against sections was not so clear as to compel his lordship to adopt it, and he the defendants in their official capacity. They were described and sued therefore did not hold that because, under the 15th section, the plaintiff as the Lords Commissioners of the Admiralty and the Director-General had an action on the case, therefore he could not sue under the 23rd of Naval Works. No distinction was drawn between them, and no act, section. Then the next point was this : the proprietor was entitled order, direction, or threat by any of them individually was alleged. His under gection 23, after demand in writing, to sue for and recover the lordship then dealt with the allegations in the statement of claim, infringing books, or damages for the detention thereof, in an action of referring particularly to paragraphs 1, 12, and 17, and pointed out that the detipue from any party who should detain the same, or to sue for and correspondence referred to therein was with officials of the Admiralty in recover damages for the conversion thereof in an action of trover. It was an official capacity only. Then the plaintiff's summons to amend really argued that the remedies under this section were alternative, and that the proceeded on the footing that the present action was one against the plaintiff must sue either in detinue or in trover, not in both.' In his lord- present defendants in their official capacity only. Ought then the plainsbip's opinion that was not so; it would be an extremely narrow con tiffs to be allowed to amend their action ? His lordship, on considerastruction of the Act to hold that the proprietor of the copyright in a book, tion, thought not. For what the plaintiffs were seeking to do was ti knowing that a man had a certain number of copies in his hands and that change one action into another of a substantially different character, as he had sold other copies, could not sue that person in detinue for the would be seen when questions of discovery, and the form and operation of copies detained, and also in trover for the copies converted to his own any judgment that could be obtained by the plaintiffs were considered. use. Tbis seemed plain from the Act itself, and his lordship did not see Action dismissed with costs, without prejudice to any claim the plaintiffs why the plaintiff should not have the two claims-viz., for detinue and might have against the two marines and the engineer or against any of trover-and he might also be said to have been exercising his right to an the defendants individually:--COUNSEL, Sir Richard Webster, A.G., A. T. action on the case by his proceedings in the Chancery Division. In his Lawrence, Q.C., and Ingle Joyce; Swinfen Eady, Q.C., and 's. Dickinson. lordship’s opinion the plaintiff was entitled to an injunction, delivery up Solicitors, Solicitor to the Treasury; Petch g Smurthwaite. of copies as in an action of detinue, and damages as in an action of trover for the books sold.--Counsel, Warrington, Q.C., and J. G. Joseph; Ren
[Reported by J. F. WALEY, Barrister-at-Law.? shaw, Q.C., and J. W. Baines. SOLICITORS, E. Salaman, Fort, $ Co.; ATTORNEY-GENERAL v. TEDDINGTON URBAN DISTRICT COUNCIL Richard:on & Goring Thomas.
Romer, J. 11th Nov. (Reported by R. J. A. Morrison, Barrister-at-Law.)
LOCAL GOVERNMENT-LAND ACQUIRED FOR SEWAGE WORKS-LAND RALEIGH v. GOSCHEN. Romer, J. 13th Nov.
REQUIRED ” FOR PURPOSE-LAND NOT IMMEDIATELY REQUIRED-USE OF
LAND-PUBLIC HEALTH ACT, 1875 (38 & 39 VICT. C. 55), s 175.
This was an action against the Teddington local authorities, at the
relation of a resident, to compel the defendants to sell a piece of land The action was brought (in the words of par. 1 of the statement of claim) which adjoined his property, on the ground that it was no longer needed for the purpose of establishing, as against the Lords Commissioners of the for the purpose for which it had been bought-viz., the disposal of sewage. Admiralty and the Director-General of Naval Works, that they were not It was stated that the land in question formed part of a piece of land entitled to enter upon, or take possession of, or to acquire by way of com- consisting of some 25 acres which had been acquired in the year 1897, pulsory purchase, certain land, the property of the plaintiffs, in the neigh- with the sanction of the Local Goverament Board, under the Publis bourhood of Dartmouth, for the purpose of establishing there a training Health Act, 1875, for the purpose of permanent sowige works, and most
of which had been used for the erection of tanks and machinery and for the council's using the land for its ultimate purpose whenever required. filtration beds for the purpose of the reception and disposal of sewage. It The case of Attorney-General v. Corporation of Southampton (1858, 1 Giff. was also stated that some of the land had been sold as not being required 363, 8 W. R. Ch. Dig. 2) did not interfere with that view. Nor was the for sewage purposes-in accordance with section 175 of the Public Health judgment of Cotton, LJ., in Bayley v. Great Western Railway Co. (1884, Act-but another part had been utilized by the defendants as a place of 26 Ch. D., p. 450, 32 W. R. Dig. 227) inconsistent. It might also be deposit for refuse collected from dustbins, to receive which trenches had added that he had nothing to do in the present case with the misapplicabeen dug to the gravel surface and drawn to the level of the subsoil. A tion of ratepayers' money. He was only concerned with the lawful user mound had also been raised. The plaintiff alleged that the defendants of the land. With regard to the works proposed by the defendants to be had also entertained a scheme for turning another part of the unused land put on the land-namely, campshedding, making up the frontage, making into a public recreation-ground, with a lake, bathing-place, and promenade, a lake, and, above all, a bathing-place-when the correspondence was and had constructed a temporary footpath over the land. The plaintiff looked at, and all the facts, his lordship thought that the defendants had alleged that the pieces of unsold land were, within the meaning of section contemplated using parts of the land not for sewage purposes, nor for 175 of the Public Health Act, 1875, “not required for the purpose for justifiable interim purposes. The defendants now asserted that they had which they were acquired” viz., the reception and disposal of sewage no intention of doing anything which would prevent them from properly and submitted that they should be ordered to sell the same in accordance using the land for its ultimate purposes. He accepted that statement. with the section. The defendants alleged that their mode of using this The mound and trench were, however, most injurious to the proper user land was not permanent, but merely temporary, and not such as to prevent of the land for sewage purposes, and were inconsistent with such user. the land from being used hereafter for sewage purposes; and, moreover, As he understood that the defendants would give au undertaking not to that, having regard to the rapid increase of Teddington ia extent and in use the land for such inconsistent purposes, he made no order except population, and to the necessity of having reserve land available for these that, on the defendants' undertaking not to use the land for dustbin purposes, the land was, in truth, still needed for the purpose for which it refuse, the defendants should pay the costs of the action.-Counsel, had been acquired. The plaintiff claimed a declaration that the land in Neville, Q.C., and F. R. Y. Radclife ; Macmorran, Q C., and Lewis Thornas. question, in all some eight acres, was not required for the purpose for SOLICITORS, Powell & Rogers ; G. Č. Sherrard. which it had been acquired under the Act of 1875, an order directing its
[Reported by J. F. WALEY, Barrister-at-Law.] sale under section 175, and an injunction restraining the defendants from appropriating or using any portion as a site for a public promenade or
HUNT v. FRIPP. Byrne, J. 10th, 11th, and 12th Nov. recreation-ground, or for ornamental water, or for å footpath, or for the BANKRUPTCY-AFTER-ACQUIRED PROPERTY-UNDISCHARGED BANKRUPT purpose of the deposit of house refuse, or for any purpose other than that New INTERVENTION OF THE TRUSTEE-ASSIGNMENT FOR VALUE-EQUIT. of the reception and disposal of sewage.
ABLE CHOSE IN ACTION. ROMER, J., found that all the land should be kept and would be The decision in this case involved a question as to the powers of a bankultimately required for sewage purposes only; or, in other words, that rupt to validly deal with property acquired after his petition, but before Eection 175 of the Public Health Act, 1875, did not apply to any portion his discharge. In April, 1892, Joho Emery, who lived in Melbourne, in of the land. No doubt at the time when the land was purchased with the the colony of Victoria, filed his petition in the Court of Insolvency there. sanction of the Local Government Board it was conteniplated, as shown His estate was placed under sequestration, and the defendant Cohen was by the plan, that part of the land purchased would not be required for appointed the assignee. In March, 1893, the father of Emery, who lived sewage purposes. But circumstances had changed, and if he were to hold in England, died, leaving by his will a legacy of £500 and a share of that the portions contemplated at the date of the purchase as not being residue to his son, the insolvent. The first two defendants were the then required to be retained for sewage purposes were on that account executors and trustees under the will. Shortly afterwards, and before never to be so used at all, he failed to see what right the local authority his discharge, Emery was informed of these facte. In September, 1893, had to acquire the land at all. In his lordsbip's view the local authority he obtained his certificate of discharge. In June, 1895, being then did acquire the whole of the land for sewage purposes, and they were not indebted in a much larger sum to the plaintiffs, Emery assigned to them, conclusively bound to cell the land marked on the plan as not required if in consideration of £900, all his share and interest in the estate of his circumstances changed and it was found that they did require it. Ap- father under the will. Neither previously to his discharge nor to this parently they had now changed their minds, and, in his opinion, they had assignment did he inform his assignee in insolvency of these interests come to a wise conclusion, and the land was required for sewage purposes. which he had acquired. Upon obtaining the assignment the plaintiffs No doubt the council, until very recently, had thought that the whole of applied to the executors of the will to have the legacy and share of Emery the land would not be required, and if they had committed themselves paid to them, but the executors, having heard of the insolvency, refused to irrevocably to the position that part was not required perhaps section 175 do so, and upon the assignee in insolvency hearing of the will he claimed would have applied. He had considerable doubt on the point, but he the interests of the insolvent under it on behalf of the creditors. The should give the council the benefit of the doubt; but he thought they plaintiff brought this action for payment to them of the moneys in queswere not precluded from saying that the whole land was required, and tion. It was admitted during the trial that the plaintiffs knew at the they were entitled to retain it. Undoubtedly what they had done had time of the assignment that Emery had not informed his assignee in insol. misled the plaintiff ; and his lordship would remember that when he came vency of his interests under his father's will. The executors took no part to deal with the question of costs. The next question which aroge was in the argument, and had paid the moneys into court. whether the defendants had dealt with any part of the land so that it tion depended upon the law of Victoria, which was governed could not be used for sewage purposes. The only parts which that by the Victorian Insolvency Act, 1890, the sections of which, as far as it referred to were those on which the trench and mound had been applied to this case, were almost identical with the corresponding sections made. Although he thought these works were improper, yet, at of the English Bankruptcy Act, 1883. Expert evidence was given of the the same time, they did not make the land on which they were Victorian law upon the case. wholly unfit for sewage purposes. The plaintiff was not, therefore, B7RNE, J., held that the result of the expert evidence and of the entitled to any declaration that any portion of the land should be sold. decision of the Judicial Committee of the Privy Council in Trimble v. Hill A further question arose. The plaintiff or relator said that the (28 W. R. 479, L. R. 5 spp. Cas. 342) was that the decision of Cohen v. defendants had dealt with parts of the land improperly, and ought to be Mitchell (38 W. R. 551, 25 Q. B. D. 262), as explained by subsequent restrained. With the exception of the mound and trench, nothing had cases, truly represented the law of Victoria on the question, the decisions been done of a permanent character. They had made a footpath and put of the English Court of Appeal upon sections nearly identical with those a few benches, and contemplated using parts of the land as a temporary of Victorian Acts being recognized and followed by the courts there. park, and these things only referred to parts not immediately required for Cohen v. Mitchell was a case where what was assigned was a legal choge sewage purposes. The plaintiff, however, argued that even such temporary in action. The rule laid down there was only meant to be a new use was not permissible, and claimed an injunction. His lordship expression of the old law and not to throw any doubt upon Ex parte Furd thought it right to state shortly his views with reference to the interim (24 W. R. 590, L. R. 1 Ch. D. 521). The fact that here the money user of the land not required for sewage purposes. He agreed that the claimed was in the hands of trustees, and had been paid by them into defendants could not apply the land to or use it for any purpose incon court to abide the results of the trial, was not suficient to distinguish sistent with the purposes for which it was acquired. But those purposes this case from Cohen v. Mitchell. The proposition was laid down iu that did not require the immediate user of every part of the land for sewage case in general terms. Re Beardman, Ex parle Clarke (38 SOLICITORS' JOURpurposes. Some part only was required for immediate sewage works, and NAL 492 ; 1894,2 Q. B. 93), like Ex parte Ford, was à case not between a the remaining part had to be retained because needed hereafter for such particular assiguee and the trustee in bankruptcy as here, but between works. Pending the actual application of this remaining part for such two general assignees, aud therefore was distinguishable. There was purposes the defendants could retain it, and one of the purposes for which good consideration in this case, and the only question was whether the it was required might be said to be such retainer. But, of course, while transaction was bond fide. It was not necessary to consider whether Emery 60 retaining it, they could not use it or deal with it in such a way as to had done what he ought to have done : see Lord Esher in Cohen v. Mitchell prevent user for sewage purposes or substantially interfere with its (ib., p. 369). Dealing bona fide meaut dealing honestly. There was no obligiimmediate user whenever it was needed for these purposes. But, subject tion upon parties dealing with an uudischarged bankrupt, although they to such exception, while retaining the land, his lordsbip did not see how kuew of the fact, to go to the trustee in bankruptcy and make enquiries. it was inconsistent with the purpose for which they had acquired it to use They deal with the bankrupt as with any other customer. The utmost that it in any lawful manner in which in its then condition it could be used, could be said against the plaintiffs was that they had ultimately a strong susprovided that such user did not substantially interfere with the main picion that there were some outstanding creditors under the old bankruptcy purpose of drainage for which the land was ultimately wanted, and he who could re-open the bankruptcy and put the assignee in motion. Tie knew of nothing which made it unlawful for a council such as these reasonable inference was that the plaintiffs were dealing honestly-ic, defendants from permitting vacant land in their possession, and not bona fide, within the rule in Cohen v. Mitchell. Judgment for the plaintiff. at the time required for the ultimate purpose for which they had - Counsel, Ere, Q.C., and Muir Mackenzie ; Norton ; Atherley Jones, Q.C., acquired it, to be temporarily ueed as a recreation-ground, provided and Compton Smith. SOLICITORS, Whites & Co.; Leslie & Hardy, for Henry care was taken to prevent any rights from being acquired over it by Pe!tit, Leighton Buzzard, Beds. ; H. A. Graham. the public or otherwise which would prevent or interfere with:
[Reported by NEVILLE TEBBUTT, Barrister-at-Law.]
would be much shorter than many of the present forms of conveyance. LAW SOCIETIES.
They could be got into an ordinary sheet of paper, and were to be understood
by any persons of ordinary intelligence. What would be the position if the THE LAND TRANSFER ACT.
new Act were allowed to come into operation ? He apprehended that the The weekly meeting of the United Law Society was held on Monday issued to him by the Land Registry Office.
landowner would start with his certificate, a certificate which was to be
And there at once they were evening at the Inner Temple Lecture Hall, under the presidency of Mr. met with a most serious and great difficulty. Under the Act the Registrar could O. W. Williams, the chairman.
issue three kinds of certificate. The subject of debate was announced as follows: “That this society dis- had an indefeasible title. He might issue one with a qualified title, or he
He might give one showing that the holder approves of the Land Transfer Act, 1897. To opon : Mr. J. S. Rubinstein. might issue one giving a possessory title. Any certificate, unless it showed To oppose : Mr. W. J. Boycott. Mr. Benjamin Groene Lake will speak on the motion."
an indefeasible title, would be practically worthless for all business dealings.
Assuming that a solicitor was acting for a willing purchaser, how could he Mr. RUBINSTBIN, in introducing the motion, said he felt rather strongly advise a client to accept a certificate saying that a man had a qualified title upon the subject. No measure had been passed in recent times probably with only? He would not know what the defect in the title might be. It was such far-reaching consequences, and which was so little understood, and it absolutely impossible upon the face of the certificates that were likely to be was very important that there should be afforded not only to members of issued to find out where the defect existed, and a purchaser must absolutely the profession, but also outside its ranke, opportunities for fully considering refuse to accept such a title. Acting for a mortgagee, how dared a solicitor the measure before it was absolutely and definitely decided that it was to lend money upon a certificate which showed that a man had only, a qualified come into operation in any county. The Act was a most dangerous one. or possessory title? He might be told they would have this indefeasible It was fraught with the gríatest danger to the interests of the landowners title. He ventured to say there was the greatest possible doubt about this. and of the public. He was not going into the relative merits of trans- If one went to the Registrar with, say, a twenty-nine years' title; the fer by deed as against transfer by registration of title, because theoretically, Registrar would laugh at him. He would say he was bound to see that there and perhaps practically, there was a great deal to be said in favour of a was a good forty years' holding title. “Give me the prior title.” What was system of registration ; but what they had to consider was, whether the the unfortunate purchaser to do? He was compelled to register. He would be system of registration of title as brought into force by the Act was one asked how he got the prior title. The conditions under which he had bought which they could support. In other words, it was not to the point to tell might preclude him from asking the vendor to give it him. How was it him that there were absolutely perfect systems in any other country in the possible to go back twenty or thirty or forty years in many cases, having world, whether it were France, Germany, Austria, or Obina.
That regard to the numerous dealings that take place with property ? Let him was absolutely beside the question. What they had to consider refer to what takes place under the Torrens' Act in Australia. They knew was, whether the system of registration as introduced by the Act that was an admirable Act. But what did they find ? It came into operation of 1875, and the amending Act of this year, would bring about a in 1862, and all titles issued by the Crown since 1862—and they were very system which would tend to the advantage of landowners and the numerous-were registered under the Act. The fact of having a registered public. Although he thought the Act was a very bad one altogether, title under the Act gave it a value it would not otherwise possess. With he was not going into Part 1 or Part 2, but would confine himself to Part 3, regard to the titles prior to 1862, there were some 7,500,000 acres, and only under which it was to come into operation compulsorily. Personally, he 150,000 of these acres had been brought under the Torrens' Act, ; and the had no objection to any Act being passed which would enable landowners of reason was simply that even in Australia, where the dealings were com. their own will to register their titles. As a matter of fact, the history of the paratively very few, it was found almost impracticable to bring them under Act showed that in 1862 such an Act was passed, the Act under which the the Act. The expense, the delay, and difficulty of searching out the earlier present Land Registry Office was established. Subsequently, when it titles were so great. No one knew how much this was the case except those was found that that office was not sufficiently attractive to draw into its net who had had occasion to go through with it, and he ventured to say that the the title and landowners, the Act of 1875 was passed, which, with the thirteen Act had not been found to be adjustable to the titles in existence before years' experience of the earlier Act, was apparently thought to be sufficiently 1862. If that was so in Australia, and for one dealing that took place there, attractive to bring about the desired result. They all knew that the regis- there would be seven in the case of similar property in this country, and it tration of titles under the Act of 1875 had been a dismal failure. The land. was absolutely impossible in many cases to find the previous title, what owners had practically given it the cold shoulder. Of course, there was an prospects were there of success ? It might be said that the Registrar had official explanation. They were told that it was the solicitors who had power to dispense with these if he thought right, but he would be in a practically prevented the landowners from registering at the Land Registry responsible position, and dared not allow a title on the register unless it was Office, that the advantages of registration were very great, and that it a good one, because the authorities would be liable for damages. They knew was only the dust thrown into the eyes of the laymen which had prevented sufficient of Government officials to feel certain that they would not run any them from seeing how advantageous it was to register their property. It was risk; it would be as much as their position was worth. If the office was rather a singular fact that the ex-Lord Chancellor and the present Lord called upon to pay £50,000 or £100,000 in damages, what would become of Chancellor, who were responsible for the last Act, although themselves land- the Registrar and of the staff of the office ? They dared not allow it to take owners, had never yet seen the advantage of the Register established by the place, and therefore all they would give was a qualified or a possessory title, Act of 1875 sufficiently to justify them in registering their titles. If they which would be absolutely worthless for practical purposes. With regard to had such implicit faith in the merits of this panacea one would have thought the question of expense. At present solicitors were paid by, scale, and the they would have been the first to take advantage of it. Those present knew expense was not serious. What would be the expense if the new system that the old official explanation was not the true one. Laymen were not so were adopted? The first purchaser, who had his conveyance and had paid his easily blinded and led by the solicitors. And it must be borne in mind that solicitor's costs, would be compelled to register. His solicitor, or, if not, the solicitors themselves owned a good deal of property in England, and yet it man himself, would go to the registry oñce with the title-deeds and ask for was found that solicitors who would have seen it to be to their advantage to a certificate under the Act. The Registrar would take possession of the register if such were the case had failed to do so. He was personally deeds, which he would require to be left with him. When the Registrar acquainted with the case of a large land society, one of the largest found time to look into it, he would begin to detect errors and omissioņs in London, whose practice it was to grant their conveyances without in the title. The purchaser would ask when he was likely to get his the intervention of a solicitor. That society bought some years back certificate, and the Registrar would reply,
“ You see that pile. I one particular estate in Leytonstone which was registered with an inde- must deal with those first.” “ But,” says the purchaser, "I want feasible title. They thought they were going to do marvellous business, to mortgage the property, and cannot do so until it is registered." "I am but after a little experience of the Act, and of the difficulties and very sorry for you," replies the Registrar, “wo are not a mortgage office ; delays thrown in their way by the Land Registry Office, they came to that is the law. It is compulsory for you to register, and we will take it as the conclusion that it was a delusion and a snare. This was of their own accord, soon as we can.' “What will be the expense ?” inquires the purchaser. without reference to solicitors, and, as a consequence, they ignored in their “ There, again,” says the Registrar, “I cannot tell you till I have gone into future dealings with the property the Land Registry Office, and continued the deeds. The unfortunate purchaser would be faced with all these disto issue these printed forms of conveyance as if it did not exist. Some of advantages and difficulties. No one could tell him when it would get the allotteos thought it desirable to register, and he had heard from many of through or what the expense would be, or what sort of a certificate he would thom very grave and serious complaints of the delays and difficulties they get when it was finished. At present the solicitor could tell an intending met with. °le proposed to refer to the matter first under the head of purchaser almost to a fraction what was the expense he would be put to. simplicity, secoudly of expense, thirdly expedition, and fourthly security. The Act was introducing a system which would not commend itself to the He put simplicity first because he thought it really the most important. landowner or the public when they had had any experience of it. On the Those who were practitioners hardly needed to be told what the present question of delay, having given several instances of the rapidity of transsystem was. Since the Act of 1881, known as Lord Cairns' Act, was passed, actions under the present system, he referred to the paper read by Mr. Blyth coupled with the Solicitors' Remuneration Act, the practice was very simple at the provincial meeting of the Incorporated Law Society last month at indeed, and year by year it was growing more simple. That Act cut down Sheffield, and quoted from it cases brought under the notice of the Comthe length of deeds, and simplified titles, doing away with surperfluous words mission which investigated the subject to show in the bulk of cases matters which used to encumber the deeds, and under the Solicitors' Remuneration were carried out in a very short time. When the new Act came into Act costs were put on a sound, rational, well-understood basis. That operation it would be impossible to fix a date for completion. With regard scale had worked well. It unquestionably did cut down solicitors' bills, but, to the question of security, it had been suggested that the present system as far as he knew, no one had complained. Indeed, the Act of 1881 which did not afford adequate security such as would be given by the system of cut down these costs was a permissive Act, and it was not compulsory for registration of title. He could not call to his recollection any instance of the solicitors to come under it. They could have still continued to draw out actual fraud which had occured in his own office. Of course, there had been long deeds and long bills of costs, but voluntarily, and in the recognition cases where titles had been submitted to his firm which they had not been that it was to the interest of their clients and, consequently, their own interest, able to pass, but he knew of no case of fraud. But, if they turned to they adopted it. At the present time nothing was more simple than the countries where registration was the rule, it could not be said there was the system of conveyance. An ordinary deed contained no words that were not same security. Mr. Blyth, in his paper, referred to Austria, where there had intelligible. He did not know what ca-tificate was to be issued which been 1,500 cases of fraud in the last twenty years. He (Mr. Rubinstein)
know of a case in Australia under the Torrens' Act. A property-owner should not propose to follow the discussion whether registration of title or there sold bis land for £3,000, but it was explained that if he sold of deeds was good. He did not conceive that that came before them. But it at that price, which was a very good one indeed, he must not the real objection to the Act was, that it compelled the new system to be object to the purchase-money appearing as £6,000. The same land introduced. He took it that compulsion was what they had all felt to be the repeatedly changed hands again. The next conveyance was for £9,000 great evil of the Act, and, as Mr. Rubinstein had said, so long as it was left and immediately after there was one of £12,000. The moneys might have as a voluntary system, as it had been since 1862, there was no great objection been paid, but it was doubtful. At all events, the last purchaser got £8,000 to giving it a fair trial. The objection to compulsion was very easily formufrom his bankers to enable him to complete the transaction, and in course of lated, and was not always so. asily met. But compulsion was rather the time the bank found the property on their hands, and it was valued at rule than the exception in legislation with the present day. He would show £2,000. These facilities for fraud were given by a system of registration of how far it operates in conveyancing. There were three or four systems, such title where the people were encouraged to act as their own solicitors. There as in Yorkshire and Middlesex, in which the system of compulsion was in were cases where clients said they had bought the property for so much, but force, and had been for years. It was not a new system at all. The mere had no objection to a larger sum being stated, and, of course, solicitors invari- system of compulsion was not of itself an objection to the Act. Primâ facie ably refused such transactions, and that was a protection against fraud. he agreed that if a thing was good it ought to be taken to voluntarily, and During 1888 Australian property to the extent of £11,000,000 changed if bad it ought not to be made compulsory ; but that only put half the case. hands according to the Registry, but he suggested that that was not the true He wanted to explain what the Act really would do. All these alarmist figure. Certainly the Australian banks had had a very rude awakening, views about the unfortunate purchaser taking his deeds to the registry and and he thought it fair to assume that this was to a certain extent due to the having such one of three certificates as the Registrar preferred were noonRegistry. The Registrar was told that a certain property was cold, for, say, shine. There was nothing of the kind in the Act. What happened was," £1,000, and knowing nothing, he entered it upon the certificate. The that if a man voluntarily went for an absolute title he could do so. Το certificate might be shown to an ignorant man acting without a solicitor, that none of them could have any objection. If he went for an absolute and he might readily advance, say, $750 upon property which was not at all title and it turned out that he could have it subject to one defect, he might of that value. The present system of depositing deeds with a banker for an withdraw biz upplication, or he might have a qualified title. A qualified advance was safo and speedy: The Act of 1897 was the worst drawn that title merely meant that there was a note in the margin, that there had ever been issued, and as he read it, it was doubtful whether under its an outstanding legal estate or something of that kind. No one provisions it could be applied to London. There was no question but that could have the certificate unless he sought it and chose to accept it. it would give plenty of work to the lawyers ; but solicitors were considering A purchaser bought his land, and went to the Registrar and said, “Here is a the interests of their clients, and did not want to deter them from buying conveyance under which I am entitled in fee simple to Blackacres.” The properties. If the Act came into operation, and all these troubles arose, Registrar would look at the form he brought, and if the deed carried out that solicitors would be blamed for it. Every expert who knew anything about he would give him a certificate of possessory title, which really meant that the subject was opposed to the Act. The present Lord Chancellor and the the Rngistrar was satisfied that the purchaser coming to him had acquired the ex-Lord Chancellor were no doubt very well-meaning theorists, and they right to possession of that land. If he wanted to mortgage it the next day bad evolved a system out of their own inner consciousness, but they had he would not have to wait years or months for his title. He had nothing to never had any experience in conveyancing matters. Lord Cairns was a do with that. The Act said that the possossory title meant this only, that conveyancer, and at one time had an idea that compulsory registration of title for the future the title was absolute if one dealt on the register excepting might be a good thing. He brought in a Bill, but further consideration led him with regard to any matter which had taken place prior to the date of the to a different conclusion, and as a result he brought in the Act of 1881 registration. In other words, the certificate of a possessory title operated, simplifying conveyancing. He might be told that the Act of 1897 was purely as had been well said, as a filter to a muddy river. It did not affect the experimental, but if it once came into operation, how would it be got rid of? previous muddy stream, but from the time the filter was used, it cleared it. Everybody knew how strongly Government officials fought for their position. The man who had hought not for immediate sale, but to keep, would in The Act would never have been passed had it not been for the existence of fifteen or twenty years have a title which would show he was absolute the Land Registry Office with its staff. It would be necessary to get a owner, because how many solicitors would hesitate to accept a title based on large office and a big staff, and would the Government under such circum & conveyance twenty years old ? This, in fact, was what the certificate stances give it up at the end of the three years ? What was to become of would be. There was no obligation on any body, even in a compulsory the people who had got these comfortable positions. It was the purest area, to submit his deeds or his title to the Registrar. He had simply to say, fallacy in the world to say they would ever get rid of the system or of the “I am in possession," and the Registrar would give his certificate. It was officials if it once came into operation.
provided-he thought by the rules—that the Registrar should not give a Mr. W. J. BOYCOTT, in opposing the motion, said he believed that in old certificate or possessory title without having a document of some kind procountries such as England, it would be impossible to formulate any system duced to him. That got rid of a good deal of difficulty. If a man wanted of registration of title which would be as simple and satisfactory as the an absolute title he could have it. But he was not even invited to go for it, present system, and he was heart and soul opposed to any principle of com because the scale of fecs settled for the purposes of the Act applied only to pulsion upon the simple ground that if it was a bad thing it was clear it | registration of possessory title. The higher scale of fees applied to those ought uot to be compulsory, whilst if it was a good thing, it would be who went for an absolute or qualified title. On whose behalf were they brought into public service without any aid from the Legislature to force it asked to express approval of the Act? If of the community, then the upon the people. But he supported the Act on the ground that for more solicitors were, of course, a part of the community, by no means a majority, than thirty years there had been a very solid and constantly increasing and surely it was not without force to say that of that community as repreagitation in favour of registration of title in substitution for the present sented in Parliament, all the principal landowners had passed the Act. The system. It originated with Lord Westbury, and was carried on by House of Commons would have passed it by a majority of ten to one if it Lord Cairns, and had reached its culminating and most unreasonable pitch had ever come to a decision. The bankers were satisfied with the Act, and in the Chancellorships of Lord Herschell and Lord Halsbury. Whether the building societies were satisfied with it. Both the bankers and the buildthere had been any justification for the agitation he was not called ing societies opposed the Bill of 1895, but neither opposed the present Bil. upon to deal with. It was not an agitation which had proceeded Mr. RUBINSTEIN: The building societies are against it. from the public at large. There was no doubt that constant persuasion from Mr. Lako said he was not ablo to quote an authority, and therefore Lord Chancellors and persons holding very high legislative offices would in accepted the statement as what Mr. Rubinstein believed. But, in considering time have persuaded the public that such an Act as this was radically the question, it was found impossible to get the building societies to act in necessary. He believed the Act to be absolutely unworkable and doomed to organised form against the Bill. What happened was, that it was found failure, but it was a compromise. He did not believe it would be ever applied that the time for argument had well-nigh ceased. Speaking as the whole to any district after the first, and thought that no harm could be done by the legal profession, because the Council of the Incorporated Law Society had experiment, although they must sympathise with the district experimented been assisted throughout and up to the last by a leading conveyancer, it was upon. If the Act had not passed, solicitors would have been told that they found that the arguments on one side and the other were practically un. had thrown it out; but in the future they could tell the public they had answerable. There were a certain number of men who believed in the made a fair offer, and had given them the opportunity of testing the system of registration, and of making it compulsory ;, and a still larger benefits of the registry, that it had proved a hopeless and irremediable number who were inclined to adopt registration of title, but could not make failure, and all they could ask them was to be quiet in future. He thought up their minds that it should be compulsory. In that state of affairs there the subject might have received more attention from the members of the were only two things to be done. Either the Bill must have been fought Bar, who had been somewhat lukewarm with regard to it. Without out in the House of Commons-and, having regard to the fact that the attempting to defend the drafting of the Act or the system of registration leaders of both parties were in favour, there would have been no chance of of title, while being absolutely hostile to any system of compulsion, he successor that must have been done which was done, namely, an experiment would base his opposition to the motion on these two grounds-first, that they must be tried to see whether the arguments as to failure or success were were adopting what was not an unreasonable compromise; and, second, that right. Argument could not decide the question, and it was necessary to Bolicitors at any rate were putting themselves in a very strong position for have some trial in order to see whether or not the objectors or the supporters the future,
took the mcre correct view. What had to be done by those who had nothing Mr. B. G. LAKE opposed the motion. He said that his difficulty in so to do with the Bill was to take care that there should be a bona fide experi. doing arose from the fact that Mr. Rubinstein's motion and speech ment, that its period should be limited, that there should be sufficient lime differed so very widely. When he saw the resolution be had thought it given to show whether, when brought into practical working. it was a was a little vague, but he had been relieved to hear from Mr. Rubinstein success. All that had been done. Although there was power for the Queen that he disassociated Parts 1, 2, and 4 from his criticism, and pro- to proclaim by Order in Council that the Act should apply to any couaty posed to deal entirely with Part 3, which made the registration or part of a county,that could not take effect without the consent, or at least in of title in certain districts compulsory. But he was afraid he opposition to the dissent, of the local governing body: The County Council had must say that Mr. Rubinstein had wholly misunderstood the Act. He had to consider the question, and if the circumstances of their county were such that gather 3d this from Mr. Rubinstein's paper read at the Sheffield meeting, and to introduce the Act would be, in their opinion, a mistake, they had only to say the same misconception permeated the speech. There were two objections so, and the Act did not give anyone, Queen or anyone else, power to override to the Act, and he really thought only two-he meant to the system. He that decision. And that was not the only precaution. That order itself