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TIN B'S 131
CASES REPORTED THIS WEEK.
down in the course of a few days from the House of Lords—namely, In the Solicitors' Journal. “Clan Grant,” The ..
the Land Transfer Bill. This is a Bill of very considerable Ashworth v. Lord
District Bank of London, In re 608
.. 664 importance, and one which bas been accepted by the other side Barangah Oil Refining Co., Re.... 607
Duncan v. Toms
with favour in the House of Lords; and if it should be the plea-
Hall v. Bromley...
sure of the House to accept it in the same spirit, I hope it may be v. T. E. Pritt
Lindsey, Ex parte, In re Bates.... 668
607 Platt, Re
666 possible to pass it into law; but I cannot insist against any 607
Murray v. Stephenson
Official Receiver, Ex parte, In re
607 St. Andrews' Hospital, Northamp
Reed & Bowen
considerable or protracted opposition.” It is to be hoped that the ton v. Shearsmith..
Reg. v. Assessment Committee of Lord Chancellor will not listen to the suggestions which have been
St. Mary, Islington
664 thrown out that the real property clauses should be severed from
Smith' v. Tregarthen
665 the rest of the Bill and carried this session. These clauses need
Tidswell, Ex parte, In re Tidswell 669 Dot less careful and prolonged consideration than those relating to
Watkinson, Ex parte, In re Wilson 668 registration, and although, after they have received full criticism
Whistler and Richardson, In re
and discussion, it will undoubtedly be desirable that the Bill
forward this session enactments which may have to be amended The Solicitors' Journal and Reporter. porated Law Society that the Bill should be referred to a com: LONDON, JULY 9, 1887.
mittee nominated by the Lord Chancellor, and composed of conveyancing counsel and solicitors, appears to afford the best
means of arriving at a satisfactory result. CURRENT TOPICS. FOR THE FIRST TIME, a Lancashire district registry cause has been appointed for Mr. Justice KEKEWICH on motion for judgment, IT IS UNDERSTOOD that the proposed scheme for a rearrangeand is to be heard on Saturday.
ment of the civil business at assizes has been withdrawn The judges and the Government found that the proposals would meet with most determined opposition not only from
the bar, who acted with unusual promptness and unanimity, WE REGRET to learn that Mr. King, the senior Chancery Regis- but also from the local authorities in the counties which it was trar, is compelled to be absent from his duties on account of ill- proposed to deprive of civil assizes ; and, as will be seen elsewhere,
Mr. Č. E. FARMER, of the Registrar's Office, has been the Lord Chief Justice added his authority, against the scheme, appointed to act as his deputy until the Long Vacation.
and also against the mode proposed for carrying it out. He seems to express an opinion that the scheme cannot legally be authorized
by Order in Council_a_view which, considering the wide JUBILEE HIGH JINKS are still interfering with the business of the terms of section 23 of the Judicature Act, 1875, we confess somecourts and impeding the constant flow of justice. We are in- what surprises us. But we think that few persons off the bench formed that on Thursday the “ Maske" at Gray's-inn attracted will doubt that the scheme ought not to be carried out in this way. half-past ten until a quarter-past two, rose for the day, and pro- world between a Bill which can be discussed in detail and amended ceeded to hear the musical arguments in Silenus v. Kawasha.
in committee, and with regard to particular parts of which even the strongest Government must give way, and an Order in Council which must be accepted or rejected en bloc, and can usually
be carried by the aid of a docile majority. The odd thing is WE RECENTLY mentioned that the Council of the Incorporated that a majority of the judges, who are commonly supposed to be Law Society had prepared a Bill to remedy the hardships which persons of common sense and experience of the world, should were likely to be occasioned by the decision in Ex parte Stanford have supposed that a scheme vitally affecting the interests of from the report of the council that tňe Bill was submitted to the counties was a proper subject for legislation by Order in Council. Lord Chancellor, but that he does not think it desirable to deal with the question by legislation. The council, however, intend to promote the Bill next session.
THE FIRST OFFENDERS BILL has now been passed by the House of Commons and introduced in the Upper House. The preamble of the Bill recites that “it would be conducive to the public good
if first offenders were, in certain cases, permitted to be at large on TAE ATTENTION of our readers should be directed to a correspond. probation of good conduct, without suffering imprisonment, so long ence which will he found in the appendix to the report of the as they properly conduct themselves and shew an earnest desire to
reform." The Bill leaves the whole matter to the discretion of Commissioners of Inland Revenue have decided that the stamp on the judges by proposing that the court may, upon conviction of Ces penal in any case not falling under the precise words brevementer any årst offender, direct that he shall be released on entering into (3) and (4) under the head “ Letter or Power of Attorney” in the upon," and, in the meantime, to observe a number of specified schedule to the Stamp Act of 1870 is ten shillings. It has been conditions, or such of them as may, in the opinion of the court, be the practice of the Paymaster-General's department to regard for suitable. These conditions are (1) that the offender notify his this purpose a periodical payment out of dividends” as a pay- residence during a period named by the court to such authority as ment of dividend or interest” within (3) of the head referred the court may direct ; (2) that he report himself once in each to and therefore to require a five-shilling stamp only. The month to such' authority ; (3) that he be of good behaviour during authorities at Somerset House, however, have decided that such a such period ; (4) “ that the offender will, if required, appear payment is not the payment of a dividend, and that if it is a before the court or some specified future court to answer privately periodical payment in excess of £10 per annum, it requires a ten as to his conduct"; and (5) that the offender will pay the costs
of the prosecution. It is also expressly provided that the period named for supervision is not to exceed twelve months. The Bill
is not a model of good drafting, but we think it is sound in prin. MH. W. H. Suitu’s statement on Monday evening in the House ciple. It turns into statute law the common law practice of dischargof Commons may probably be taken as setting the face of the Landing offenders in the less serious cases upon the terms of entering Transfer Billor, at all events, of the registration part of it—this into a recognizance to come up for judgment when called upon, and session. He said': -" There is one other measure which will come all the other provisions of the Bill are so purely discretionary that,
if wisely administered, they can do little harm. It should of forty shillings, and "it shall be_lawful for any constable be expressly provided, however, that the power of the court to belonging to the Metropolitan Police Force to take into custody, call up a first offender for judgment should be limited in point of without warrant, any person who shall commit any such offence time, and the twelve months during which the conditions are to be within view of any such constable." It is absolutely necessary, observed would be a very good limit to fix. Both at common for this section to operate, that the offence should be committed law and by the Bill the power to "call up for judgment" appears within view of the constable (see Simmons v. Millingen, 2 C. B. to be unlimited in point of time. It is seldom or never exercised, 524; Justice v. Gosling, 12 C. B. 39), and if it be not so combut none the less should it be limited. Otherwise the convicted mitted the constable is liable to an action for false imprisonment. person has the possibility of being “called up" hanging over him It may be doubted whether so large powers of arrest without for life.
warrant have been wisely conferred upon the metropolitan police indiscriminately.
WE OBSERVE that, with the view of increasing the efficiency of the Preliminary Examination, certain alterations have been A FURTHER Batch of amendments stood in the paper when the made, including the substitution of passages for translation at sight Land Transfer Bill was reported to the House of Lords on Thursinstead of passages from books named five months previously; the day last. They were nearly all in the name of the Lord Chanaddition of algebra up to simple equations and the first four books cellor. Lord HERSCHELL made one more attempt to throw the duty of Euclid, and a more stringent regard to spelling and English of registering on the purchaser and not on the vendor, and Lord composition. It appears that the judges to whom the altered MONTEAGLE moved for the extension of the real property clauses
ulations were, under the Act of Parliament (40 & 41 Vict. c. to Ireland. We append a summary of the more substantial of the 25, s. 6), submitted for approval, objected to the addition of Lord Chancellor's amendments, a considerable number being only algebra and Euclid being treated as essential, and insisted on the verbal improvements and corrections. candidates having the option of taking up these subjects in lieu Clause 4.—To add a power for the board, on first registration of of one of the two languages prescribed. The change in the direc- a leasehold, to dispense with production of the actual lease or a tion of setting passages for translation from unseen authors in the copy thereof (required by section 11 of the Act of 1875), and to language paper is a step in the right direction, as it is a well- accept secondary evidence of its provisions in proper cases. known fact that many candidates have, by means of cramming, Clause 5.—To direct that the assignee (by operation of law or passed without having even an elementary knowledge of the lan- otherwise) of a person registered as tenant for life shall be regisguages taken up. With regard to the algebra and Euclid we tered as such-the registration not to impair the tenant for life's venture to think that it would have been much better to make powers. these subjects essential. The examination has always been a very Clause 30.—A corresponding alteration of the provision as to elementary one, but this alteration will lower rather than increase bankruptcy of tenant for life. its standard. The Council have during the past year abolished the Clause 36.—The rules are to contain directions as to when old classification of the subjects for the Final Examination into office fees may be remitted, and as to the notices in respect of essential and non-essential subjects, considering that candidates deaths to be given to the Commissioners of Inland Revenue. should be examined in all branches of the law usually transacted Clause 37, sub-clause 1.-Remodelled so as (1) to include a by solicitors. We have already given full particulars of this casus omissus-namely, where real estate is vested in a person alteration. The principal feature will be that no one subject will which, if he had died intestate, would not pass to his heirs, be more essential than another, and that a candidate will have to namely, where such person took by descent, and the land would, obtain a fixed minimum of marks, but it does not matter in which therefore, go to the heirs of his ancestor, the purchaser. It should of the subjects he obtains the necessary marks.
be observed that the beneficial enjoyment is not altered, only it is provided that in this case, too, the executor of the person last seised shall administer ; and (2) to meet an argument (raised over
a colonial Act) that where a man died without heirs (though A FULL INQUIRY having been promised in Miss Cassis case, there leaving a will') the Act did not apply. The sub-clause 2.0 is little to be said except that the vote of censure in which the runs: -- Any real estate which would, but for this Act, on the series of fiascos in that case culminated will be useful as affirming death of any person intestate pass to his heirs, or, if he became Commons for the administration of justice, and especially respon- Sab-clauses 2 and 3" are transplanted into clause 41, from which sible for the investigation of complaints of misconduct on the we also note the puzzling, and, at best, unnecessary, 'words " pari part of the metropolitan police. Mr. Matthews' action in passu wth his personal estate”.
are to be excluded. the matter certainly shewed an inadequate appreciation of his duties in this respect and an unlawyer-like readiness in the first extrenue care needed to be taken when institutions are“ abolished.”
Clause 47.-A curious little addition is made, shewing the instance to pronounce judgment on apparently inadequate materials. For it appears that the borrowing powers of at least two Yorkshire Home Secretary could do would be to draw the attention of the local Yorkshire registry. The local registry being (prospectively Lord Chancellor to the matter, and it is not clear what course, abolished by this Act, those towns would have been in the rather beyond censure, could be taken in case the Lord Chancellor came distressing situation for a local body of being unable to borrow to the conclusion that the magistrate had been guilty of serious had not " Ehe present proviso been added, substituting the land misconduct. There does not appear to be any explicit power registry for the local registry for this purpose. to dismiss a metropolitan police magistrate given by 2 & 3 Vict. c. 71, but possibly the general power in the crown to discharge applicants and other persons dealing with the office, has being
Clause 53, authorizing the employment of officers on behalf of any justice of the peace by writ under the Great Seal (Burn's Jus elucidated. It will be remembered that it was thought this tice, 30th ed., 3rd vol. by Cave, p. 123), might cover the case. clause opened the door to the admission of a number of personne of the Home Secretary to direct the commissioners of Police to registry. I forhe amendment new confines the provision of certam As regards the policeman, there was, of course, power on the part not solicitors, to the privilege of transacting business in the inquire into his conduct.
to examiners of title, surveyors, and other persons as provided by the rules.
THE POWER of police constables to arrest women for solicitation
Vict. c. 47, s. 54).
A CORRESPONDENT, alluding to Mr. BRICKDALE's letter in the By this section every person being a common points out that the come siste registered dealings cannot be or public place for the purpose teriprostitution or solicitation glo fere er det derdings while complete recountry in the salaries of the electing annoyance of the inhabitants or passengers ” is liable to a penalty employed to transact them.
For instance, should the registry
(as it has done in former years) cost between £5,000 and £6,000 The view which the Master of the Rolls takes comes, if we à year to maintain, 100 applications per annum would cost about rightly understand it, to this: There is a general duty with £55 each. Even if this be so reduced as to bring the official dis- regard to premises, machinery, or anything of which a person may bursements down to £5 each, this, added to the lowest of Mr. BRICK- have the management and control, to take ordinary care that the DALE's instances-£2 128. 8d.-makes a total to the nation and the person or property of others lawfully coming upon, or into landowner together (in computing which, by-the-bye, our correspon- proximity to, such premises, machinery, or other matters shall not dent omits to substract the office fee of 78. 60.) of £7 18s. 8d, as suffer damage by reason of the state thereof, and that knowledge compared with £6, the total present costs for the same transaction. by the party injured of such state is only an element in deterWe need hardly point out, however, that in these calculations the mining whether there has been contributory negligence. He most important item-namely, the average cost to the office of con- says: “The duty, however, is that you are bound not to do ducting dealings, which our correspondent conjecturally places at anything negligently so to hurt a person near you, and the whole £5—is one which it is impossible to determine with certainty. duty arises from the knowledge of that proximity. Whether the The scale of fees issued by the present registry, which formed the negligence is your personal act or arises from using your property basis of Mr. BRICKDALE’s statistics, was intended, and doubtless was in a particular way, the rule equally applies, and you must so use carefully calculated, to make the office self-supporting. The Queens- your personal powers or property as not to injure any other person land registry has 48,000 titles in it—the returns, largely from if, by the exercise of reasonable care, you can avoid doing so." a uniform tariff of fees of 10s. for a mortgage and £í for å transfer, This practically reduces the whole question in these cases to two exceed the expenses in all cases, independently of value, many elements-viz., negligence and contributory negligence. times; the gross expenses, however, only amount to £4,230 1s. 4d. It appears to us that the subject is one involving much difficulty, —rather less than 2s. per title per annum.
both practical and theoretical, in either point of view. A great deal of the theoretical difficulty arises from the fact that, owing to certain natural human tendencies, which are, perhaps, in
evitable, in many cases the findings of juries on the question THE APPLICATION OF THE MAXIM VOLENTI NON whether there has been negligence or contributory negligence are FIT INJURIA TO THE LAW OF NEGLIGENCE.
untrustworthy. If juries could be trusted to take a really fair
and dispassionate view, in many cases this nice question as to the The law of negligence is one of the most interesting and, as it existence of any, and, if so, what, duty would be rendered seems to us, the most obscure and uncertain branches of the law. unnecessary by the fact that the existence of negligence would be We made a little while ago some short observations on the recent immediately negatived. The truth is that in these cases the decision in Thomas v. Quartermaine, as briefly reported in the questions whether there was a duty and whether there was neg. daily papers. The full report of the case has since been pub- ligence or a breach of duty may often be really interchangeable. lished" (33 W. R. 555, 18 Q. B. D. 685). The judges in the If the question whether there was a duty is framed so as to state Court of Appeal delivered separate judgments, each of which will exactly what the duty suggested is, it becomes obvious that be found to be full of interest, but perhaps more particularly that practically this is so. The question, whether there was a duty of Bowen, L.J., which is a masterpiece of powerful and subtle under the circumstances of the particular case to do or not to do reasoning. The judgment of the Master of the Rolls will, we are a particular thing, comes to much the same thing as the question, disposed to think, be found, upon careful consideration of the whether it was negligent under all the circumstances of the matter, to be in truth, to a great extent, a corollary from views particular case to do or not to do a particular thing. Judges have expressed by him more full and elaborately in the well-known really distinguished between the two questions because juries case of Hearen v. Pender (11 Q. B. D. 503).
cannot be altogether trusted, but there is always a difficulty about The general interest of the case does not depend so much on the the distinction. The Master of the Rolls is pre-eminent among particular point decided with regard to the construction of the judges for his belief in juries and the jury system, and no judge is Employers' Liability Act as on the discussion of general principles 'more careful so to frame his general propositions of law as to give with regard to the law of negligence. The facts shortly were the fullest operation to the functions of the juryman, and we these : The plaintiff was employed at a brewery; upon the premises cannot help thinking that there is some relation between his belief there was a vat full of scalding fluid, round which there was a in juries and his way of looking at these questions of negligence. rim about sixteen inches high. The plaintiff was attempting to It will be obvious to anyone who carefully reads his judgments in pull a board from under another vat, and, the board coming away Heaven v. Pender and the case we are now discussing, how great is more suddenly than he expected, he fell into the first-mentioned their tendency to put the question in these cases unrestrictedly vat. The county court judge found that there was a defect in the into the hands of the jury. Given the general definition of the condition of the works at the defendants' brewery by reason of duty which he propounds, it simply becomes a question for the there being nc sufficient fence to the cooling vat; that the con- jury whether the degree of care he describes as ordinary care has dition of the vat was known to both the plaintiff and the defend- been used by the defendant, and whether, if not, there was conant; and that the plaintiff had not been guilty of contributory tributory negligence, negligence. It was held by the majority of the court (Bowen and One great difficulty in relation to the law of tort which Fry, L.JJ.) that the plaintiff could not maintain an action under is particularly exemplified in the law of negligence is that the Employers' Liability Act, Lord Esher, M.R., dissenting. It it must to a great extent be founded on moral duty, but was a question in the case whether that Act had placed the ser- that the ideas of legal duty and moral duty, nevertheless,
The limits of moral vant in the same position as, or in a better position than, anyone are not and cannot be coincident. of the public invited on to the premises, but we rather understand duty are, in the nature of things, shifting and uncertain ; it is the the Master of the Rolls” judgment really to involve the propo- necessary tendency of the ideas of moral duty to be in a state of sition that, apart from the fact of his being a servant, the plaintiff flux, and ever enlarging their borders. And, more than that, at would have had a cause of action at common law, and herein any given time it is hardly possible to assign exact limits to a appears to us mainly to lie the interest of the conflict of views. moral duty. In everyday life it is constantly being recognized The view of the majority seems to be briefly this : Without a that moral and legal duty are not coincident. Ản honest man will
A humane man duty there can be no negligence, or, in other words, neglect of pay a debt barred by the Statute of Limitations. duty; the existence of the duty, and, consequently, of the negli- will take many precautions for the benefit of his workmen or gence, depends on the circumstances with regard to the particular servants which clearly he could not be compelled by common law person towards whom the duty is alleged ; there can be no duty to take. No one will deny that it is a moral duty to be humane. upon the person who occupies premises to have such premises, of The function of law in this respect is to determine to what extent machinery, or other matters thereon in a particular condition, 'nor moral and legal duty ought to be coincident—i.e., in what cases, pero, by the licence of the occupier, voluntarily comes upon such the performance of moral duty. There is an obvious distinction premises with as complete knowledge of the state of things that between justice and benevolence. The law has to say what is exists and any danger resulting therefrom as the occupier of the just as between man and man. A juryman will be apt in many premises has himself.
of these cases to make the precepts of benevolence the measure of
Sir,-The table set out in Mr. Brickdale's letter (SOLICITORS in the course of the year the expenses would average about £55
Taking the first instance in the table, the total cost of registering a
justice, as against others. The vice, as we venture to think, of and introduced so nearly at the same moment; the Prussian Registry the Master of the Rolls' view of the subject of negligence is that of Title was established in 1872, and was very soon adopted by the
other German States. the result of it would be, if logically carried out in practice, a
The most interesting portion of the report at the present juncture is failure to distinguish sufficiently between the moral duty of a humane or scrupulous man to use precautions to prevent injury to at the end, where a few notes are collected as to the processes the person or property of others, and the legal duty that ought to employed to get land on to the register in the first instance - first
registration, which appears, by-the-bye, to have been effected with be enforced against all men. His judgment in the case of guaranteed title in all cases. The proof of title admitted was Heaven v. Pender, if followed, would, as we conceive, have been a | various. perfectly new departure in the law of negligence. We imagine 1. Sale by judicial auction. Apparently any vendor could sell by that it will be found that in the previous cases on the judicial auction on producing a certificate of possession given by å subject the principle has always been recognized that there must local authority, coupled with a certain amount of public advertise
ment. be special circumstances on which the duty to take care towards
2. Certificate of ownership. How obtainable is not specified-prothe particular person may be founded. Something beyond the bably from the existing deed registrars, after search of some kind. mere fact that the defendant knew, or ought to have known
3. Evidence of possession, either if he reflected, that in the absence of some precaution a person (a.) For twenty-five years simply, or coming into proximity to the machinery, or whatever it might be (6.) For ten years at least, plus a legal commencement of such that caused the damage, might be injured. Thus, for instance,
possession. to persons using an adjoining highway, or in the lawful exercise of (c.) For ten years by the applicant and his predecessor together. a right of way over private land, there is a duty on the part of the
4. Evidence of title in the ordinary sense. occupier of premises so to use them as not to endanger the safety report are these. We give them without comment:
The other more notable points of the system mentioned in the of such persons. To persons invited on to premises or licensees there is a duty not to lay a trap for them, not to allow them, in quent registration. The act of transfer consists in a verbal or
Transfers consist of two parts-an act of transfer, and its subseignorance or with incomplete knowledge, to expose themselves to written conveyance by the registered proprietor and an acceptance risks the nature of which the occupier of the premises either by the transferee. Where the parties can attend at the registry knew or ought to have known. It would be impossible to exhaust (nearly every market town has its registry) the process is verbal; by one or two formulæ the whole of the law on this subject, but where the written form is used it must be properly verified and we think it will be found that in all the cases some special circum- authenticated. stances existed beyond what would be necessary to satisfy the pro
Devolutions do not require registration until the new owner desires position laid down by the Master of the Rolls in Heaven v. Pender. to transfer or charge the land, then he must be registered. Notice At any rate, we cannot think that there is any authority for the of prior unregistered rights does not affect the title of a registered proposition that a person is responsible as for negligence in respect
Adverse possession gives no title as against the registered proof anything on his premises constituting a danger which is as well
prietor. known or as obvious to the person whom he has invited on to his Notes of temporary matters, such as intended sales and mortgages, premises as it is to himself.
lis pendens, &c., corresponding to our “ caution” and “notice" But, although we cannot help thinking that, upon the authorities system, can also be entered on the register. and the general principles which have always been supposed to
Easements and other rights to which property is subject must be govern the law of negligence, the decision of the majority was
registered in order to affect third parties. correct, we think everyone will be painfully conscious, after also given of certain rights which shall not be affected by registration,
A list (curiously similar to section 18 of the Land Transfer Act) is perusing the judgments of the Court of Appeal in the cases we they are all either notorious or trivial matters. have mentioned above, that there are great logical and practical difficulties in connection with this branch of the law, whether it which we are informed is used for large sums mostly, the ancient
A very distinctive feature of the system is the land debenture, be regarded from the point of view adopted by the majority or mortgage or registered charge being still kept on foot and largely that adopted by the Master of the Rolls, and we can conceive that, used for small sums. Mortgages are given constantly for less than the latter, by which these questions are really made almost separate sheet in the register, but means appear to exist for collecting to some minds, it may appear that after all the broader view of £1; the fees being less than 1s. in such cases. entirely questions of fact, is the sounder and more logical.
the parcels when several are in the owership of one proprietor.
The register is only accessible to persons interested.
It appears that the oral instructions of applicants are readily received
by the registrars, who thereupon, in ordinary cases, make the necessary CONVEYANCE AND REGISTRATION OF LAND alterations in the registers while the parties wait. TITLES IN PRUSSIA.
Trust estates can be registered on production of the certificate of
officials specially charged with their supervision. THE report by Mr. C. S. Scott, Secretary to her Majesty's Embassy at Berlin, on this subject has just appeared. The following observa- appended to the original statute, with translations of the various
The report concludes with some of the specimen forms of registers tions are partly extracted from the report and partly derived from entries. independent sources. We may congratulate Mr. Scott upon having very successfully achieved a difficu task. As he himself says, to Preussische Grundbuch-recht" (Berlin, 1881), 700 pages, which he
Mr. Scott refers the legal expert to Herr Bahlmann's.“ Das supply information in such detail as would admit of thoroughly test- has himself utilized for the purposes of this report. ing the applicability of the Prussian system to England or other countries would require more leisure and technical knowledge of the subject than can be expected from a member of the Embassy; but for information of a general character given in a concise form the report leaves little or nothing to be desired. An instance, however, of the small pitfalls which the unprofessional
CORRESPONDENCE. person is exposed to in dealing with technical subjects occurs in the translation of the first paragraph of the Prussian Statute of 1872.
COSTS UNDER THE LAND TRANSFER BILL. The report states that a conveyance followed by registration is
[To the Editor of the Solicitors' Journal. necessary only to cases of gift, as opposed to Lealings for value, but the appra system as compared with the cost of the present practice seems translated (with literal accuracy) “voluntary disposal” means really hardly complete. operation of law-i.e., a sale of mortgage at against lationccession of £6,000 aw zeares If there are one hundred applications for registration
The expenses of the Land Register Ofice are between £5,000 and bankruptcy.
There is really so very little difference between the main principles each,
& fee to the
out independently of each other cas suppears to have become theorkes modessted., as compared with us, the amount of present costs.
607 I have reason to think that the system of the Conveyancing Act, to compel specific performance, so that A.'s name could be entered on the 1881, and the scale charges is not generally known, and that it has register of members even without his consent. Was there any such not had a sufficient trial. In all probability, if allowed to continue, take £2,875 in fully paid-up shares. The shares in respect of which A. had
The contract into which A. had entered was that he would it would be found to effect, in time, both simplicity of title and as much expedition in the transfer of land as one need wish for.
been registered were not, in the eye of the law, paid up; whoever took E. H.
them would be liable to pay the full amount of them. It was argued that, as between the company and A., they must be deemed to be fully paid up. But that was not so. The contract referred to shares
which, in law, were fully paid up. It was said that it was for A. to CASES OF THE WEEK.
make them fully paid up, by registering a contract in compliance with section
25. In his lordship's opinion section 25 did not impose on either party Re PLATT-C. A. No. 2, 5th July.
in particular the duty of registering the contract. The contract must be
registered before the issue of the shares, or the shares must be treated as LUNACY-PETITION UNDER TRUSTEE Relier ACT-JURISDICTION-JUDICA- not paid at all. But it was rather for those who sought to enforce a contract TURE Act, 1873, s. 51. to do what was necessary to its completion. The case was distinguishable
There the This was a petition by the personal representative of a deceased person from Blyth's case (4 Ch. D. 140), which had been relied on. of unsound mind, not so found by inquisition, for the payment out of person who had agreed to take the shares had allowed his name to be court of a fund which had been paid in under the Trustee Relief Act to transferring them. That had no bearing on the present case. A. was
entered on the register of the company, and had dealt with the shares by the credit of the deceased. The petition was entitled in the matter of under no obligation to register a contract for the issue of the shares as that Act, and in the matter of the Trustee Acts.
The Court (Cotton, Bowen, and Fry, L.JJ.) at first felt some doubt fully paid up, but, unless such a contract was registered, the shares could whether they had any original juriediction under the Trustee Relief Act, but to perform a contract which, on the face, purported to confer a benefit on
not be so issued. A court of equity would not compel a man specifically on referring to the request addressed to them some years since by the Lord him by taking that which would only impose a liability on him, and the Chancellor (vide 20 SOLICITORS' JOURNAL, 45) to act as additional judges of the Chancery Division, it was found that it was not limited to petitions company could never allege that they had been ready and willing to give entitled in luvacy and the matter of the Trustee Acts, but that it extended
A. fully paid-up shares. Did, then, A. ever aesent to having the shares diction of the Chancery Division. The Court accordingly made the order appeared to be a strong prima facie case against him, leading to the to all applications in lunacy which required also an exercise of the juris- registered in his name? He might, if he had pleased, have assented to
At first there asked for.- CounsEL, F. Thompson. SOLICITOR, R. C. Adams Beck.
inference that he intended to take these particular shares, though they Re THE BARANGAH OIL REFINING CO.-C. A. No. 2, 30th June.
were not, in fact, fully paid up. But the evidence satisfied his lordship
that A. had never intended to deal with these particular shares which were COMPANY-WINDING UP-CONTRIBUTORY-CONTRACT TO TAKE FULLY PAUD. registered in his name, and had never assented to their being so
UP SHARES-OMISSION TO REGISTER CONTRACT—COMPANIES Act, 1862, registered. His lordship added that it had been argued that section 25 s. 23—COMPANIES Act, 1867, s. 25.
applied only in the case of a winding up. That was not so; it was of This was an appeal from a decision of North, J. (ante, p. 46). The general application. Bowen, L.J., concurred. Unexplained, the books question was whether A., a former director of the company, could be made
of the company raised a presumption against A., but they were only a contributory in respect of unpaid shares, he having agreed to take fully primâ facie evidence. The notion that a director of a company was con. paid-up shares. At a meeting of the board of directors, held on the 19th clusively bound by entries in the company's books had no foundation at of June, 1883, at which A. was present, it was resolved, "That 500 fully law or in equity. Fry, L.J., said that the shares could not be treated as paid up, shares in the company be voted and presented to A. in recogni- fully paid up, for the agreement so to issue them had not been registered, tion of his services on behalf of the company in undertaking two journeys and the contemporaneous agreement to give A. an equivalent sum of to India, subject to confirmation at the next general meeting of the money could not be treated as payment of the shares in cash. But then shareholders." At another meeting of the bɔard, on the 28th of August; section 25 applied only to shares issued and held.” That turned upon
arose the question whether the shares were ever “held” by A., for 1883, it was resolved "That the board further vote A., seventy-five fully section 23 of the Act of 1862, and the question was whether A. ever was paid-up shares, subject to confirmation of the shareholders at the next general meeting, for the additional assistance he has rendered the com
member" of the company, or had agreed to become a member, in pany.". The next general meeting of the company was held on the 24th respect of these shares. His original agreement was not to take shares of October, 1883, and it was then resolved by the shareholders “That a
of any other deecription than fully paid-up shares, and the evidence taken Smoot,2,875 be voted to A., which he agreed to take in 575 fully paid-up altogether did not shew any assent by A. to a departure from that agreeshares." A. was present at this meeting and assented to the resolution.
ment.--Counsel, Buckley, Q.O., and Stewart Smith ; Maclean, Q.C., and No proper share register was kept by the company, but his name was
Swinfen Eady. Solicitors, Rooks & Co.; Milton Bradford. entered in the shareholders' ledger as the holder of 500 of the 575 shares. He afterwards transferred to other persons 260 of the 500 shares, and he THE LONDON AND YORKSHIRE BANK (LIM.) v. T. E. PRITT.and the secretary of the company signed certificates for 500 of the shares.
Chitty, J., 1st July. North, J., held that A. had agreed to take the 575 shares, and that he must RESTRAINT ON Trade-Agreement ExtractED FROM CONDITION IN BONDbe placed on the list of contributories in respect of the 315 which remained
INJUNCTION. in bis name, and that, no contract for the issue of the shares as fully paid up having been registered in compliance with section 25 of the Companies from the condition of a bond, or whether the sole remedy against breach
In this case the question arose whether an agreement could be gathered respect of them, and that the £2,875 which was voted to A. could not be by the obligor was a monetary penalty. The bond in question was given treated as an independent debt, and set off against the corresponding sum
in a sum of £1,000 by the defendant, a bank manager, to the plaintiffs, which was due from him upon the shares, 56 as to make the shares fully his employers, and the condition was that the defendant should not,
On the hearing of the appeal the court allowed fresh evidence to during the space of twelve calendar months next after quitting the be adduced, and this new evidence satisfied the court that, whene 1: plaintiffs' employ, take a banking appointment within five miles of the that he believed that he was transferring some other shares which had and accepted a post at a neighbouring bank, the plaintiffs moved for been previously allotted to him ; that the numbers were wrongly filled in
an interim injunction. The defendant submitted that the plaintiffs could by the mistake of a clerk of the company; that when A. signed the cer.
only sue for damages. tificates he did so only with the intention of taking the shares when they
Chitty, J., said that when the circumstances under which the bond should be duly allotted to him as, in fact, fully paid up in compliance was executed, and also the intention of the parties were regarded, the with section 25 ; and that his name was entered in the company's books as
fair way of looking at the matter was to take the agreement as existing the holder of the shares without his knowledge or assent.
in the condition of the bond, and to extract it out of the bond. Authority The Court (COTTON, Bowen, and Fre, L.JI.) allowed the appeal. for such a course could be found in the cases of Gravely v. Bernard (22 W.R. October, which voted the 575 shares to X., there had been a debt due to granted the injunction as asked. “Counsel, Romer, Q.C., and Carson ; deci from the company, then, in accordance both with principle and the Maclean, Q.C., and Upjohn. Solicitors, Bompas, Bischoff, Dodgson, f. Coxe; decided cases, the set off of that lebt against the amount payable by him Torr, Janeways, & Co. in respect of the shares might have been considered payment of the shares, if the liability of the company to him existing antecedently to the
Re SIMPSON'S TRUSTS-North, J., 2nd July. resolution had been of sufficient amount. But it would be wrong to apply Appoistuext of new Trustees— Constructive TrusteesHIP-JURISDICthat principle to a case in which the debt from the company was created by the same resolution which voted the shares to him as fully paid up. It
TION—DispexsING WITH SERVICE OF Petition—Trustee Act, 1850. would be, in effect, an allotment of shares as fully paid up, without com
This was a petition for the appointment of trustees of a will, and for an plying with section 25 of the Companies Act, 1867. In the present case
order vesting in the trustees to be appointed the right to call for a no contract for the issue of the 575 shares as fully paid up was ever
transfer of a sum of Consols of which the trust property consisted. The registered. It was, however, argued that, under section 23 of the testator did not by his will appoint any trustee. The stock stood in the Companies Act, 1862, A. must be considered a contributory, because he
name of his executor. The executor had died, and no representation had had agreed to become a member of the company, and his name was on
been taken out to him. the register of shareholders. In his lordship's opinion it must be shewn North, J., held, on the authority of Re Davis' Trusts (12 Eq. 214), either that, with his assent, his name had been entered on the register as themember of the company, or that he had entered into a contract with received the testator's personal estate, and haviug paid his debts and the company to become a member, of which the liquidator was entitled Tegacies, became a trustee of the fund. His lordship also held that it was