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Reg. v. Bird and Others.
Needes
Russian Spratu's Patent (Limited),
In re. Johnson v. Russian Spratt's
Patent (Limited)

Ex parte

528

514

Grand Junction Waterworks Co. v. The
Hampton Urban District Council 571
Howcroft v. Laycock
Reg v. Sharpe and Others (Justices).
Ex parte Ellis.

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ALLIANCE ASSURANCE COMPANY. Toms v. Clacton Urban District Council 572

Established 1824. Capital, £5,000,000 Sterling.
HEAD OFFICE: BARTHOLOMEW LANE, LONDON.
Chairman: RIGHT HON. LORD ROTHSCHILD.

LONDON BRANCHES 1, ST. JAMES'S ST., S.W.; 63, CHANCERY LANE, W.C.;
NORFOLK ST., STRAND; WIGMORE ST.; 3, MINCING LANE, E.Ć.
LIFE AND FIRE INSURANCES AT MODERATE RATES.

Life Policies free from Restrictions, with Perfect Security and Liberal Bonuses.
Special forms of Policies have been prepared to provide for payment of ESTATE DUTIES.
LEASEHOLD AND SINKING FUND POLICIES.
Full Prospectuses on application.
ROBERT LEWIS, Chief Secretary.

CURRENT TOPICS.

THE RETIREMENT of Mr. Registrar WARD, well earned as it is, will be a source of much regret to practitioners, as removing from the registrars' office an official whose abundant commonsense, experience, and courtesy have been greatly appreciated.

LEGAL AND GENERAL LIFE ASSURANCE There are few posts in which these qualities are more desirable

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than in that of a Chancery Registrar, whose duties consist so largely in applying and enforcing requirements which, in the hands of some men of technical bent, are as unchangeable as the laws of the Medes and Persians. As senior registrar, Mr. WARD's influence has been of great value. We believe that hẹ first entered the Chancery Registrar's Office in or about 1853, so that he can count over forty years' service.

MR. JUSTICE BARNES announced in court on Tuesday that in future the court would adjourn at 1.30, and sit from 2.15 to 4.15, in order to suit the convenience of the Trinity Masters. It would seem desirable that this question of the luncheon hour (or portion of hour) should be considered and settled with regard to ail the courts, and that at least a full hour should be allowed. The interval is important, not merely for the refreshment of the bench, counsel, and solicitors, but also as affording an opportunity for counsel and solicitors to discuss the work of the afternoon.

WE ARE entirely at one with our correspondents who write to deprecate the practice of revealing in the newspapers the particulars of the gross and net personal estate of testators, and the dispositions contained in their wills. The information given is frequently misleading, and the publication of it often causes great inconvenience and annoyance to relatives. The difficulty is that the practice has now been allowed to exist for so many years that the authorities are likely to be rather shy of interfering with it. Still we think that if a statement were prepared and extensively signed by solicitors, setting forth instances of the evils arising from the publication, and were presented to Sir F. JEUNE by a deputation from the Council of the Incorporated Law Society, something would probably be done to check the practice.

any

empowers the court to order the committee to "exercise power or give any consent required for the exercise of any power where the power is vested in the lunatic for his own benefit, or the power of consent is in the nature of a beneficial interest in the lunatic." This provision the court seems to have considered inapplicable to the present case, unless by unduly straining its construction. However this may be, the decision itself is eminently satisfactory, and is calculated to be a useful authority in similar cases.

THE LAND Charges Bill which has been introduced in the House of Lords by the Lord Chancellor, proposes to deprive judgments of any effect as creating a charge on land, and to substitute a charging order to be obtained by the judgment creditor. Under the Judgments Act, 1864 (27 & 28 Vict. c. 112), no judgment affects any land until the land has been actually delivered in execution by virtue of a writ of elegit or other lawful authority, but, subject to this requirement, the lands of a judgment debtor are bound by a registered judgment. Previously to 1888 purchasers were exposed to danger in consequence of the difficulty of ascertaining whether the land had been delivered in execution (Re Pope, 17 Q B. D. 543), but under the Land Charges IT IS PROVIDED by the County Court Rules that, where a defendRegistration Act, 1888 (51 & 52 Vict. c. 51), delivery in execu- ant intends to rely upon any statutory defence, he must, five clear tion is void as against a purchaser for value unless the writ days before the hearing, file a statement of his grounds of defence under which it takes place is for the time being registered and set forth therein the year, chapter, and section, or short under that Act, and the position of purchasers has thus been title, of the statute. Does this rule require a defendant who secured. The present Bill proposes to put judgments as has a defence under the Statute of Frauds to give notice of his affecting land on an entirely new footing. By clause 3 a defence in order to avail himself of it? This question has been judgment, whether obtained before or after the commence- raised time after time in the county courts, and some judges ment of the Act, is not to operate as a charge on land, or have held that no such notice is necessary, whilst others have on any interest in land, or on the unpaid purchase-money refused to allow the Statute of Frauds to be set up in the for any land; and by clause 1, where a judgment has been absence of such notice. It is obviously a matter of the greatest obtained for the payment of money, the judgment creditor is to importance that such a question should be settled once for all; be entitled to a charging order charging specified land of the but years have passed by without any decision of the High judgment debtor, or a specified interest of the judgment debtor Court on the point-or at least without any decision which has in land, with payment of the money and of interest and costs. been reported. It has, however, now been settled in the case of The charging order will have the like effect as if it were a Brutton v. Branson, which recently came before a Divisional Court mortgage deed validly and effectually made by the debtor, upon composed of WILLS and CHANNELL, JJ. (reported in the Times which the mortgage money has become due, and with an un- of May 8). The action was on a contract for the sale of goods conditional power of immediate sale, but is not to prejudice any of over £10 in value, and the defence was that there was no rights-presumably other than those of the judgment debtor-memorandum in writing as required by section 4 of the Sale of affecting the land at the date of the order. The charging order Goods Act, 1893, which section now takes the place of section will have to be registered under the Act of 1888. Thus the 17 of the Statute of Frauds. No notice of this defence having scheme abolishes the sheriff as a means of enforcing judgments been given, the question arose whether the defendant could against land, and, after the charging order has been obtained, avail himself of it-or, in other words, whether a defence under the judgment creditor will realize his judgment as though he section 4 of the Sale of Goods Act is a "statutory defence" were a mortgagee. within the meaning of the rules. Now, a defence must either be a defence at common law or a defence under the provisions of some statute, leaving equitable defences out of the question. To an action on a contract for the sale of goods, it is quite clear that the want of writing is not a defence at common law. What, then, can it be except a statutory defence? We confess that we have never been able to appreciate the difficulty, nor to see how it can be seriously argued that the defence of the Statute of Frauds is not a statutory defence, and that, therefore, notice of such defence need not be given. We are glad, therefore, to find that neither of the learned judges could see any meaning in the expression "statutory defence" if it did not include a defence under the Statute of Frauds, and that they held that notice of such defence must be given under the rules. The matter may now accordingly be considered as settled, and several county courts will have to alter their practice. courts will have to alter their practice.

THE DECISION OF LINDLEY, M.R., and CHITTY and COLLINS, L.JJ., in Re The Earl of Sefton is the strong decision of a strong court. It rests on the view taken by the court of their general jurisdiction, and does not consist as so many modern decisions do-in a mere construction of an Act of Parliament, or a mere application of the principle of a previously decided case. The matter arose out of the lunacy of the present Earl of SEFTON. He had, prior to the unfortunate accident which affected his mind, created a base fee in certain settled estates, of which he was tenant in tail in remainder expectant on the determination of the life estate of his father, the late earl. Under the will of the late earl, who died last year (the will having been made before the lunacy), the lunatic was entitled to very considerable benefits, upon the condition that he should execute a resettlement of the settled estates. The question was whether the court had jurisdiction to order the committee of the estate of the lunatic to execute such resettlement on his behalf, and whether such jurisdiction, if it existed, ought to be exercised. Both questions have been answered in the affirmative. general rule upon which the courts have consistently acted is, that the character of a lunatic's property and the rights of his successors ought not to be interfered with: see the judgment of Lord SELBORNE in Attorney-General v. Marquis of Ailesbury (12 App. Cas. 672). But there is a supplementary rule that such an interference may take place where this is clearly for the benefit of the lunatic: see Ex parte Phillips (19 Ves. 118) and Oxenden v. Lord Compton (2 Ves. jun. 69). The cases last referred to do not, however, go so far as the decision in Lord SEFTON's case; that decision, as already pointed out, stands independent of authority. A noticeable feature of the case is that, notwithstanding the consolidation of the law of lunacy effected (or attempted) in the Acts of 1890 and 1891, the court could derive no assistance from those Acts in their endeavour to secure to the lunatic the benefit intended for him by his father's will. The statutory provision which comes nearest to an authority for the order which the court has made is probably section 120 (6) of the Lunacy Act, 1890, which

The

THE SUMMONS against a barman employed in the House of Commons for selling liquor without a licence was dismissed. It can hardly be said, however, that the grounds upon which it was dismissed are quite satisfactory. The defendant was clearly guilty within the words of the Licensing Acts, for he was neither licensed himself nor was he the servant of a licensed person, nor is the House of Commons a body which is expressly excepted from the provisions of the Act of 1872. The magistrate at Bow. street dismissed the summons on the ground that the Legislature could not have intended to bring about the absurdities that would be produced by applying the Licensing Acts to the House of Commons. It is submitted that this reasoning is hardly convincing, and probably the persons who have raised the question will not rest until the matter has been brought before the High Court. It must be admitted, however, that the results which any other decision of the magistrate might possibly have led to are too wildly absurd for anything except a comic opera. Thus, the magistrate might make an order declaring all the liquor found in the House to be forfeited. Again, if the Members of Parliament are to be considered the occupiers of the House, everyone of them who is privy or consents to the sale of liquor is liable to all the penalties imposed upon persons for

selling without license. The most startling result, however, | to receive him. It appears that he cannot be sent to a State might be obtained by applying section 17 of the Act of 1874. reformatory, and what is to happen if a certified reformatory By that section a discretion is given to any justice of the peace, willing to receive him cannot be found is not stated. A court if satisfied that liquor is being sold by retail at any place within of summary jurisdiction is to be given power to make the order his jurisdiction, to grant a warrant authorizing a constable to for detention on a fourth conviction for drunkenness within enter such place, by force if necessary, and to search the place twelve months, with the consent of the accused, or where the and every part thereof for intoxicating liquor, and to remove accused pleads guilty to the offence and admits being a habitual any liquor found therein. We do not think that any one of the drunkard, or where the accused is under sixteen years of age Metropolitan police magistrates would use his discretion to grant and consents to the matter being finally dealt with by the such a warrant, but there are many unpaid justices of the peace magistrates. The Bill was well received by all parties in the having jurisdiction in London, and who knows but that one of them House, and seems likely to become a measure of great public might be found courageous enough to grant such a warrant. The benefit. The procedure, however, is rather in the nature of an position of the constable who, in obedience to such a warrant, innovation. It is not provided that habitual drunkenness is an tried to force his way into the House of Commons and to seize offence, but still a person may be indicted for being a habitual the wine, would hardly be a comfortable one. When judgment drunkard. In no other case, apparently, may any matter which was given against the defendant in the famous case of Stockdale is not a crime be thus alleged against a person in an indictment. v. Hansard (4 Jur. 70), a writ of execution was issued to the Sheriff of Middlesex against the defendant's goods. The sheriff obeyed the writ and seized the goods. He was promptly imprisoned by the House of Commons for contempt, and when brought before the Court of Queen's Bench by habeas corpus, the judges refused to inquire what was the contempt for which he was committed, or to interfere with the action of the House. This case should be a warning to those answerable for the recent prosecution.

THE RECENT decision of a Divisional Court (DAY and LAWRANCE, JJ.) in Altree v. Altree, to which attention is called in a letter which we publish elsewhere, shews that the practice sometimes followed of omitting to insert in a deed the address or registered office of a limited company which is a party to the deed will have a disastrous effect in the case of a bill of sale under which a company is the grantee. The statutory form of bill of sale inserts the word "of" after the letters "C. D.," which stand for the name of the grantee, and then there follows a blank for IT HAS for a long time been rather widely recognized that the address and description. In Altree v. Altree no notice was habitual drunkards ought not fairly to be held entirely ac- taken of the blank, and the grantee under the bill of sale was countable for their actions. The time, therefore, seems to described simply as "The Staffordshire Financial Co. (Limited)." have come when the liberty of these unfortunate and trouble. It was contended that the omission to give the address and some persons may be restricted by law for remedial treatment description of the grantee was a departure from the statutory without any shock to public feeling; although there is no form which rendered the bill of sale void, and to this contention tendency to relax the important principle of criminal law that the court acceded. The test which is to be applied in ascerdrunkenness is no excuse for crime. Hitherto restraint can taining whether a bill of sale sufficiently complies with the form only be used provided the drunkard consents in the first instance, has been variously stated. According to BRETT, M.R., in Davis but now the Habitual Inebriates Bill, which has recently passed v. Burton (11 Q. B. D., p. 540), the enactment of section 9 of a second reading in the Commons, proposes to restrain him the Act of 1882, that a bill of sale must be "in accordance whether he likes it or not. The Bill provides for the estab-with the form in the schedule," means that every bill of lishment of State inebriate reformatories, and for the certifying sale shall be substantially like the form. Nothing substantial of inebriate reformatories established by public bodies or by must be subtracted from it, and nothing actually inconsistent private individuals. The Bill proposes that in one of such must be added to it. In Ex parte Stanford (17 Q. B. D., p. 270) places the habitual drunkard may be ordered to be detained for it was said by BowEN, L.J., in delivering the judgment of five any time not exceeding three years, by a court of assize or members of the Court of Appeal, that the test whether a diverof quarter sessions. There are two ways in which it is gence was substantial was whether it altered the legal effect of proposed that this order may be obtained. First, when the the document. But this is not to be treated as a universal test, drunkard is convicted on indictment of any offence punishable and it appears to be sufficient that there is a divergence in respect with imprisonment or penal servitude, and is at the trial proved of any matter which is characteristic of the statutory form (Thomas to be a habitual drunkard. The allegation that he is such. Kelly, 37 W. R. 353, 13 App. Cas. 506; Parsons v. Brand, 38 habitual drunkard must be made in the indictment, but the W. R. 388, 25 Q. B. D. 110). The question is, therefore, whether count containing such allegation is not to be put to the prisoner the address and description of the grantee are characteristic of until he has been found guilty, or pleaded guilty, to the main the statutory form. Our correspondents strongly urge that the charge-in the same way that a count is used which charges a decision of the Divisional Court is wrong, and they refer to the prisoner with having been previously convicted. The jury have practice of describing companies by name only. The practice is then to decide whether or not the convicted person is a habitual by no means universal-indeed we should almost have said it was drunkard. The Bill does not contain any fresh definition of the more usual to add the registered office of a limited company-and, term "habitual drunkard," but it is defined in the Habitual if it were, it could hardly affect the question whether or no the inDrunkards Act, 1879, to mean "a person who, not being sertion of the address is characteristic of the form. The same amenable to any jurisdiction in lunacy, is, notwithstanding, by rule must apply whoever is the grantee, and in the case of an reason of habitual intemperate drinking of intoxicating liquor, individual it would clearly not be safe to give only his name, at times dangerous to himself or herself, or to others, or when the statutory form obviously contemplates the addition of incapable of managing himself or herself, or his or her affairs." his address and description. We hope we are wrong for the The jury having found the prisoner to be a habitual drunkard, decision is extremely inconvenient-but we rather fear, in spite or the prisoner having admitted the fact, he may be ordered to of our respect for our correspondents' opinion, that Altree v. be detained as above stated, either in addition to, or in substi- Altree must be treated as one of those hard but not obviously tution for, any other sentence. The second way in which an incorrect decisions to which section 9 has given rise. order of detention may be obtained is applicable to those drunkards who have not committed an indictable offence, but who are constantly being charged in the police-courts with drunkenness. It is proposed that where a person is charged with drunkenness, after having been convicted at least three times of drunkenness within the twelve months preceding, he may be sent for trial on indictment, and if convicted on the indictment of the offence, and of being a habitual drunkard, he may be ordered to be detained for any period not exceeding three years in any certified inebriate reformatory that is willing

IN THE CASE of Toms v. Clacton Urban District Council, before ROMER, J. (reported elsewhere), the principle that a grantor shall not derogate from his grant was applied to somewhat novel circumstances. This maxim of law, which has been said to be "as well established by authority as it is consonant to reason and common sense" (see Wheeldon v. Burrows, 28 W. R. 196, 12 Ch. D. 31, at p. 49, per THESIGER, L.J.), is frequently appealed

to in cases of implied grants and reservations of the right to | for the benefit of all persons interested in the property. But light on the sale of one of two adjoining tenements by the the majority of the court (COTTON and BRETT, L.JJ.) declined to owner of both. The general result of the rule is that the give this effect to the statute, and they declined also to extend grantor of part of a tenement retains no rights over the part the vendor's trusteeship in the manner suggested. "An granted (see Elphinstone on the Interpretation of Deeds, p. unpaid vendor," said COTTON, LJ., "is a trustee in a qualified 199). The facts of the above case were a sale by the vendor of sense only, and is so only because he has made a contract which a part of his tenement to the defendants for a cemetery, they court of equity will give effect to by transferring the property covenanting not to use the land for any other purpose without sold to the purchaser, and so far as he is a trustee he is so his consent; letting of a cottage on another part within 100 yards only in respect of the property contracted to be sold. Of this of the first-mentioned part on a weekly tenancy, and action by the policy is not a part." But while the majority of the Court of the tenant to restrain the defendants, under the Burial Act, Appeal held that the purchaser was bound to pay the entire 1855, s. 9, from using the land for a cemetery within 100 yards purchase-money without any abatement in respect of moneys of his dwelling-house. It was argued that, if the prohibition received from the insurance office, it was suggested that the of the Act were held to apply in such a case, the express pur- vendor would not be able to retain such moneys against the pose of the vendor's grant might be entirely defeated, and that office, and the soundness of this suggestion was proved by the the effect of the rule that a man shall not derogate from his subsequent action of Castellain v. Preston (supra). There it was grant was, as shewn by the cases, to prevent, not only the held that the contract of fire insurance was a contract of vendor, but anyone claiming through or under him, from indemnity only, and that an insurer who had paid upon a loss invoking the Act for the purpose of restricting the defendants' was entitled to the benefit of any payments to the insured by user of the land: see Elliot v. North-Eastern Railway Co (8 which the loss was subsequently diminished. Consequently, W. R. 603, 11 lb. 601, 1 Johns. & H. 145, 10 H. L. Cas. 333) since the vendor had received the full amount of the purchaseand Siddons v. Short (2 C. P. D. 572, 26 W. R. Dig. 253). The money and had thus been saved from loss, the insurance office learned judge considered that the action was in substance the recovered back from him the amount of the policy-moneys vendor's action, and that in bringing it he was trying to dero- which it had paid (see, too, Darrell v. Tibbits, 29 W. R. 66, 5 gate from his grant. But he also expressed the opinion that a Q. B. D. 560). bona fide lessee or occupier, after and with full knowledge of the vendor's grant, could not be in any better position than his own grantor, or acquire a right which his own grantor had not. The action accordingly failed. It will be seen that the question whether costs as between solicitor and client ought to be given under the Public Authorities Protection Act, 1893, on the principle of Harrop v. Ossett Corporation (46 W. R. 391; 1898, 1 Ch. 525), was reserved for consideration.

ASSIGNMENT OF THE BENEFIT OF FIRE
POLICIES.

WE have received a letter from a correspondent raising the
question of the position of a vendor who has sold pro-
perty under a condition that the purchaser shall have the
benefit of the current fire policies. Unless the name of the
purchaser has been submitted to the insurance office, and the
office has consented to an assignment, it has been suggested to
be the result of the recent decisions upon the subject that, if a
loss occurs pending completion and the vendor receives the
policy-moneys from the office, he will be liable upon completion
to allow the purchaser to set-off the amount so received against
the purchase-money, and also to refund the amount of the
policy-moneys to the office. The result, therefore, of a provision
which is intended to save the purchaser from the injustice of
having to pay in full for property which has been destroyed by
fire is to throw the loss upon the vendor and to enable the in-
surance office, who have been paid for undertaking the risk, to
go free. If this correctly represents the law, vendors who assent
to the condition in question incur a very grave danger, and our
correspondent inquires whether there is any authority that such
is really their position.

In the case where the contract of sale is silent as to the fire policies, the law has been settled by the recent decisions of Rayner v. Preston (29 W. R. 547, 18 Ch. D. 1) and Castellain v. Preston (31 W. R. 557, 11 Q. B. D. 380). As between vendor and purchaser, the risk is upon the latter as from the date of the contract, and, apart from any question of insurance, the full purchase-money must be paid, notwithstanding that the property has been destroyed by fire pending completion. If, however, the benefit of the policy ran with the land, the purchaser would be entitled to any moneys received by the vendor from the insurance office, and this was the view taken by JAMES, L.J., in his dissentient judgment in Rayner v. Preston. He based his judgment on two grounds: (1) that after the contract the vendor was a trustee for the purchaser and was bound to hand over to him any benefit derived under the policy; and (2) that it followed from 14 Geo. 3, c. 78, s. 83 (which empowers persons interested in the property to call upon the insurance office to apply the insurance moneys in reinstating it) that the policy enured

The question is, how this right of the insurance office to recover back the policy-moneys is affected by a condition that the purchaser shall have the benefit of them. Usually the policy is granted in such a form as not to be assignable without the consent of the office, and, as already stated, it has been suggested as the result of the decisions that the office is entitled to recover money which it has paid to the vendor, notwithstanding that under this condition he is bound to hand the money over to the purchaser, and in a work of authority this result is treated as probably correct (Dart, Vendors and Purchasers, 6th ed., pp. 197, 913). Apparently the idea is that the vendor, on receiving the purchase-money, obtains the full value of the property so as to prevent him from alleging as against the insurance office that he has suffered any loss, and that the office is not concerned with any collateral contract which he has made with regard to the disposal of the insurance moneys. It is possible that a court might adopt this argument and compel the vendor to refund money which he had allowed upon completion to the purchaser, but that such a decision would be given we very much doubt. It is to be noticed that until completion the vendor remains the owner of the property, and in general retains possession of it. He has a right to sue upon the policy: Collingridge v. Royal Exchange Assurance Corporation (26 W. R. 112, 3 Q. B. D. 173), and no additional risk is imposed upon the office. So long as he has not been paid by the purchaser, his claim to recover against the office is clear. And when, after recovery of the insurance money, it becomes necessary to inquire whether the vendor has in fact suffered any loss, his contract with the purchaser must be taken as a whole. He is entitled, indeed, under the contract to receive the entire purchase-money, but this is subject to the condition that he shall account to the purchaser for the insurance moneys. It is an incident of the sale that so soon as the moneys come to his hands the purchaser shall have the benefit of them. If the vendor receives them before completion, he allows them to be set off on completion; if afterwards, he forthwith pays them to the purchaser. He only sells the property subject to this liability, and it seems impossible to say that after he has satisfied the liability, and in substance sold the property for a sum representing the difference between the original purchase-money and the amount of the insurance moneys, the office can successfully allege that he has suffered no loss by reason of the fire.

In our view, therefore, it is incorrect to say that the vendor will have to account for the policy moneys to the purchaser and at the same time have to hand them back to the office, but since the question has been raised, it behoves vendors to look upon the condition with suspicion. It is, of course, easy for the purchaser to protect himself otherwise. He can insure the property himself upon the making of the contract, though, having regard to the uncertainty as to whether the contract will be completed,

he may object to incurring this expense. The better course is for application to be at once made to the fire office for consent to an assignment of the policies, and then the purchaser will obtain the benefit of them both before and after completion. Without an assignment the condition in the contract is useless after completion, for the vendor can no longer sue (Ecclesiastical Commissioners v. Royal Exchange Assurance Corporation, 39 SOLICITOR'S JOURNAL 623), and the purchaser cannot sue in his

own name.

THE LAND TRANSFER RULES.

VI.

Part III-Registered dealings with registered land.-Transfers of land. It should be noticed that Part III. is in the draft rules written Part IV. in error. Two forms of instruments of transfer are prescribed (rules 78 and 79), the first where the whole of the land comprised in a title is transferred (Form 13), and the second where part only is transferred (Form 14). There are other forms of instruments of transfer, which we will deal with hereafter. It will be observed that the forms do not contain any acknowledgment of receipt of purchase-money, and that the clumsy provisions under the old rules relating to verification of the signatures to transfers are no longer in force.

A transfer is to be executed as a deed, and to be signed by both transferor and transferee, as in the case of transfers of stock (rules 147 and 148). When a transfer is lodged for registration notice thereof is to be sent to the registered proprietor, unless the execution is admitted by him, and the transfer is not to be registered for three days (rule 152). This again is analogous to the practice of a company which sends a letter to a shareholder before registering a transfer of stock. A transfer is a new assurance of land entirely dependent for its validity and effect upon the statute creating it, and it becomes of the utmost importance, therefore, to determine its effect. First, then, as regards an absolute title, section 30 of the Act of 1875 is as follows:

A transfer for valuable consideration of freehold land registered with an absolute title shall, when registered, confer on the transferee an estate in fee simple in the land transferred, together with all rights, privileges, and appurtenances belonging or appurtenant thereto, subject as follows:

(1) To the incumbrances, if any, entered on the register; and

(2) Unless the contrary is expressed on the register, to such liabilities, rights, and interests, if any, as are by this Act declared not to be incumbrances, but free from all other estates and interests whatsoever, including estates and interests of Her Majesty. A duly registered transfer for valuable consideration, which would include marriage, seems to confer a new statutory estate in fee simple on the transferee. The statutory estate so conferred is free from incumbrances, except such (if any) as remain entered on the register at the date of registration of the transfer, and seems to be discharged from all unregistered estates, and from all equities, including, it is conceived, vendor's lien for unpaid purchase-money, not protected by caution, inhibition, or other notice on the register, whether the transferee has extraneous notice thereof or not, but it is subject to certain liabilities which, in the absence of an entry to the contrary on the register, affect all registered land (see Act of 1875, s. 18, as amended by First Schedule to the Act of 1897). It may, perhaps, be open to question whether a transfer operates to pass the estate of the transferor or creates a new estate. Having regard, however, to the rule that there cannot be two common law fees coexisting in the same land (Challis's Real Property, 2nd ed., p. 306), it is conceived that a transfer will be held to vest the legal estate in a transferee for value. If this is not the case, then, inasmuch as a purchaser will require the legal estate for the purpose of unregistered dispositions, the system of registration falls to the ground, as the purchaser will require an abstract of title apart from the register.

As the rights under a transfer of land registered with a possessory title are of greater importance than, and are deter

mined by reference to, the provisions respecting an absolute
title, we will turn at once to section 32 of the Act of 1875, which
is as follows:
A transfer for valuable consideration of freehold land
registered with a possessory title shall not affect or preju-
dice the enforcement of any right or interest adverse to or
in derogation of the title of the first registered proprietor,
and subsisting or capable of arising at the time of the
registration of such proprietor; but, save as aforesaid, shall
when registered have the same effect as a transfer for
valuable consideration of the same land registered with an
absolute title.

The effect in the case of a possessory title is the same, therefore, as in the case of an absolute title, except that the transfer does not overreach rights and interests paramount to the fee simple conferred by first registration. On comparing the section last set out with section 8 of the Act of 1875 (ante, p. 505) the omission of the word "estate" will be noticed. We conceive, however, that this does not affect the construction. It follows that a purchaser from a proprietor of land registered with a possessory title will require an abstract of title to estates, rights, and interests paramount to the statutory fee simple conferred by first registration. This right is recognized and preserved by section 16 of the Act of 1897. The date of first registration will be disclosed in the case of a possessory title by the land certificate (First Schedule to the Rules, Form 56). Where, therefore, the abstract of title discloses a paramount estate, a purchaser will require a further abstract of title shewing the devolution of the paramount estate after the date of first registration in order that he may be satisfied that it has been got in since the date of first registration. If the person who got in the paramount estate is not the registered proprietor who is selling, the purchaser will at least require it to be shown that the person who got in the estate was the registered proprietor of the land at the time when the paramount estate was got in. This can only be done by searching the back entries in the register, which the purchaser may now do (rule 212).

If a certificate of registration with a possessory title is not (as it is conceived it should not be) a good commencement of title for the purposes of the Vendor and Purchaser Act, 1874, then, notwithstanding that forty years or more have run since the date of first registration, an abstract of title relating to estates which were paramount at the date of first registration, whether got in or not, must, unless the purchaser contracts himself out of his rights, be furnished to him. It results that in many cases it will be best to keep on foot a title in the usual way off the register, by taking a conveyance in common form as well as a transfer on the register; the purchaser will not only secure for certain the benefit of the Vendor and Purchaser Act, so as only to be liable to produce a forty years' title at most under an open contract, but will also avoid any doubt as to the sufficiency of the prescribed form of transfer for passing any estate or interest got in by the registered proprietor off the register.

In addition, it should be observed that the general words given in section 30, set out above, do not correspond with those implied under section 6 of the Conveyancing and Law of Property Act, 1881. The principal operative words in that section parcel of are "reputed or known as land." These words do not occur in section 30, so that a doubt will arise whether reputed rights and easements pass under a registered transfer.

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When the man in the street is told that, at any rate until judicial decisions have set the doubts on the Act of 1875 at rest, even after he has registered his land, abstracts of title and conveyances on sale will go on merrily just as at present, with the addition of registration, he may feel that the time has arrived for an attempt to be made to express the intention of that Act in terms sufficiently technical and accurate to be acted on by the profession.

The Berlin correspondent of the Times announces the death of Professor Julius Baron, Professor of Roman Law in the University of Bonn. Pro

fessor Baron was the author of numerous works on Roman law. After cccupied in succession the chairs of Roman law in the universities of having been attached for twenty years to the University of Berlin, he Greifswald, Berne, and Benn. He was in his sixty-fifth year.

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