Page images
PDF
EPUB

able that the judges of the Court of Appeal should be so far divorced from practice that they should have to take instruction

THE PRACTICAL EFFECT OF THE in it from time to time when it happens to become important that

CONVEYANCING ACT. they should know it ? For the same reason that it is desirable that

VI. -COVENANTS FOR TITLE (continued). they should preside at the trial of causes, and for the very purpose

BEFORE we sum up the practical results of our inquiries into of enabling them to preside efficiently, it may be urged that they should preserve a frequent and intimate connection with the whole

section 7, the reader's attention must be directed to one of its course which is pursued by those matters, the substantial issues in

provisions not yet noticed by us. which come before them for decision. It may be doubted whether

(7.) A covenant implied as aforesaid may be varied or extended by deed,

and, as so varied or extended, shall, as far as may be, operate in the like their time could be better occupied.

manner, and with all the like incidents, effects, and consequences, as if such But an objection may be raised to this proposal, founded on the variations or extensions were directed in this section to be implied.” well-known distrust with which a court of two is regarded. It is

There is nothing here said to restrict the deed varying the often said (and what is said represents the truth to a very large implied covenants to the deed in which the covenants are extent) that in such a court, if both judges are strong, they will

implied, and therefore it would seem that the covenants for differ; if one is strong and one is weak, the strong man absorbs the

title may be varied or extended at any time after the conveyance weak one, and if both are weak they only coincide in infirmity.

| by a separate deed. The operation of a subsequent deed may be The first is the dangerous case here, for it may be fairly assumed

somewhat doubtful, but there seems to be no doubt that the implied that the judges of the Court of Appeal are strong, though not all

covenants may be varied and extended at the pleasure of the perfect equals in strength. But when the matter is looked

parties, so that it be done by the deed in which the covenants are at it will be found that what constitutes an objection

ejection implied; and the varied or extended covenants are to operate in when the matter for decision is a rule of substantive law, or lily

T, or like manner, &c., as if the variations or extensions had been the application of such a rule to facts, is removed or becomes a |

| directed in the section to be implied. It would, therefore, seem positive advantage when the matter in question is one of procedure.

that the incident of “running," not only “with the land,” but Such matters are not matters of strict logic but of practical con

with any part of the estate of the purchaser, will be attached to venience. A court which is to regulate and harmonize practice

such variations and extensions. It is, therefore, a question of will not be one in which such strong individual views are likely to

much interest wbat the expression “may be varied or extended” prevail. If there be a difference of opinion in the application of a

occurring in sub-section (7), may be taken to imply. Would it, for rule to facts, the necessary result of having the decision affirmed

example, authorize the insertion in the conveyance of the ordinary will in this class of cases be a sufficient presumption of its correct

covenants for title, accompanied by a declaration that they ness. If the court differ as to a rule, it will be almost a matter of

should be construed as variations or extensions of the implied course that, as has happened on several occasions, their ultimate

covenants by virtue of section 7, sub-section (7)? If this sugdecision will be that of others as well as of themselves, and the

gestion should be found to be within the intention of subrule laid down will gain additional weight from that circumstance.

section (7), it seems to offer a method by which to avoid all But we may, perhaps, adduce a stronger argument—namely, the

the disadvantages which we are compelled to think inseparable provision of section 12 of the Judicature Act, 1875, which (in this

from the implied covenants given in the Act, and at the same respect varying the rule of section 53 of the Act of 1873) allows tir

time to secure for the purchaser all the benefits offered by subappeals in interlocutory matters to be heard before two judges

section (6). only. Hitherto this provision has been practically a dead letter,

To sum up the effect of this section : From the point of view of because it is rarely convenient or possible to constitute a court of

the vendor the implied covenants given by the Act seem to offer him two without discharging a third from duty; but under the pro

a slight advantage, carrying back the chain of covenants only to posal we venture to make, the intention of the Legislature would

the last purchase for value, whether any covenants for title were then have practical effect given to it.

entered into or not. This is in accordance with the view which But will there be any difficulty in supplying this court from the

we have above expressed on the scope of the covenants; but we Court of Appeal? When the Court of Appeal came into full working

8 may mention that the learned authors of a recently published textorder after the Appellate Jurisdiction Act, it numbered, excluding book doubt whether the words "except by purchase for value" the Lord Chancellor, but including the Master of the Rolls, who sat

import the restriction by us attributed to it, seeming to think that, frequently, and the three chiefs, who sat occasionally, nine mem

in some cases, a covenant so qualified would “ extend to the acts of bers. It now numbers, still excluding the Lord Chancellor, but in

every person in the chain of title who did not take the estate as a cluding the Master of the Rolls as a permanent judge, and the Lord

purchaser for value, notwithstanding the intervention of a purchaser Chief Justice, only seven members. At the former period then it

for value." If this latter view be correct, the burden, in this was possible to find nine judges of the first rank and weight. Why |

respect upon the vendor will be very largely increased, instead will it be now impossible to find other nine of equal calibre ? If

1 of being a little diminished. The burden seems, at all events, to then the Lord Chief Justice, who has other great and important

be increased for the vendor, by reason of his increased liability to duties to discharge, be omitted, there would remain eight work

be sued by sub-assigns of the purchaser for a breach of the coveing members—enough to form two courts of three for the hearing

nants. So, at least, we understand the words of sub-section (6), of ordinary appeals, and one court of two for hearing appeals on

“The benefit of a covenant implied as aforesaid . . shall be points of practice. So far no difficulty need be feared ; and this

capable of being enforced by every person in whom” the estate gain will be effected, that the remaining Courts of Appeal, relieved

of the purchaser“ is, for the whole or any part thereof, from from the hearing of practice cases, will be able to devote their

time to time vested ; ” though it is not usual to speak of enforcing whole time and energy to disposing without interruption of the

the benefit of a covenant. If our view be taken of the effect of ordinary work; which may, perhaps, be found to give other advan

the qualification, “otherwise than by purchase for value," these tages which we have not here space to discuss.

objections seem to be not of sufficient weight to induce vendors to show firmness in refusing the implied covenants if purchasers should strongly desire them. The difficulty of introducing the

covenants into practice is, upon that hypothesis, likely to arise We were lately favoured, says the Scottish Journal of Jurisprudence, with rather from the side of the purchaser. Putting aside, as unworthy a sight of a proof copy of Mr. Curror's proposed “Agricultural Holdings of notice, the trifling saving of a few folios in the engrossment, we (Scotland) Bill," and were much amused thereat. The errors and eccentri.

have to inquire what compensation they offer for their greater cities of parliamentary draftsmen have often been adverted to, but we conceive that nothing similar to the following has ever been unearthed

difficulties of interpretation as compared with the usual express

a from the stores of forgotten or abortive pieces of legislation. This is what covenants. There is little probability that the effect of their adoption is given in the clause containing the definition of terms used in the Bill will be to make the costs of the transaction less to the purchaser ; as the definition of trespassers :-"Trespassers' means the fauna of the

for no one supposes that the scale to be settled under the Solicountry whether wild or domesticated, and includes mankind." The picture of the sporting farmer, fired with indignation against trespassers,

citors' Remuneration Act will afford a less remuneration to the going out to shoot "the fauna of the country” is irresistibly ludicrous ; solicitor carrying out the purchase than is afforded by the present "which includes mankind" is a touch of genius quite unapproachable. practice. And while we admit that the purchaser gains something from the increased facility of enforcing the covenants given by chaser of the largest lot, and recipient of the title deeds, at an sub-section (6), we own that this seems to us to be one of those auction to the purchasers of the smaller lots. advantages which may be accepted as a gift, but are hardly worth buying. VII.—“ALL THE ESTATE” CLAUSE.

REVIEWS. In an early article we alluded to 'the peculiar distribution of subjects in the Act. We had then particularly in mind, among

MERCHANT SHIPPING. other things, section 63, which is as follows:

A COMPENDIUM OF THE LAW OF MERCHANT SHIPPING : WITH AN APPENDIX "63.-(1.) Every conveyance shall, by virtue of this Act, be effectual to CONTAINING ALL THE STATUTES, ORDERS IN COUNCIL, AND FORMS OF pass all the estate, right, title, interest, claim, and demand which the con PRACTICAL UTILITY. By FREDERIC PHILIP MAUDE and CHARLES EDWARD veyancing parties respectively have, in, to, or on the property conveyed, or POLLOCK, Barristers-at-Law. FOURTH EDITION. By the Hon. Baron expressed or intended so to be, or which they respectively have power to POLLOCK and GAINSFORD BRUCE, Barristers-at-Law. Henry Sweet. convey in, to, or on the same. "(Ž.) This section applies only if and as far as a contrary intention is not

“The first edition of this work," we are told in the preface, “was express ed in the conveyance, and shall have effect subject to the terms of the

| published in 1853. It formed the labour of two young barristers, at a conveyance and to the provisions therein contained.

time when business either in court or chambers had scarcely begun to "(3). This section applies only to conveyances made after the commence find them occupation.” The present edition had made great progress ment of the Act.”

80 far back as 1870, but its completion was stayed by the death of We think it convenient to place together those parts of the Act

Mr. Maude, to whose ability there is a graceful testimony paid in the

preface, “and it was not till five or six years later that the work was which aim at effecting a direct change in the external form of

taken up anew by the surviving author and Mr. Gainsford Bruce.” conveyances.

The result is now before us in two large and handsome volumes, the We may plausibly suppose the design of the section to first being the “compendium ” properly so called, and the second an have been to insert the clause by implication in all those appendix containing the text of all the statutes and Orders in Council deeds in which, under the present practice, it is expressly not ordinarily to be found except in the columns of the Gazette with inserted. But under the present practice, the clause is never

the exceptions of a few of minor importance"-having the force of law expressly inserted in leases, in which, nevertheless, it would

relating to merchant shipping, so as to be of service, “not only to the seem to be implied under the present section. By the inter

legal profession, but to consuls at foreign ports, commanders of Queen's pretation clause, section 2, sub-section (v.), conveyance, unless

ships, and shipowners, and others concerned in shipping."

It having been so long a time-seventeen years-since the last edition a contrary intention appears, includes lease; and we fail in

was published, we may perhaps as well criticize the book as if it were & section 63 to discern any sufficient manifestation of an intention new one, especially as no less than forty-three enactments connected to exclude it. In section 7, “ demise by way of lease at a rent” is with the subject appear from the appendix to have been passed since specially excluded from “conveyance" by a special interpretation | 1864. clause applying only to that section. This is a ground for con

And, first, the arrangement of chapters "Title to Ships, The Owner, cluding that in sections of the Act which contain no such special

The Master, The Crew, The Pilot, Contract of Affreightment and its

Incidents, Insurance, Hypothecation and Sale, Collision, Salvage, Towage, provision the general interpretation clause is intended to take effect.

Wreck and Shipping Casualties, and Passengers"-seems to us to be It would, therefore, seem that, after the commencement of the Act, good, except that “ Towage " appears to be a little out of its place; the every lease for years made by an owner in fee simple would be division of two of the chapters into parts is unfortunate, and the chapter prevented from operating, under section 63, sub-section (1), as a on “ Passengers" ought either to have been omitted in a compendium conveyance of the whole fee only by the restriction contained in on “ Merchant Shipping" or to have caused an enlargement of the title sub-section (2). Moreover, since the operation of sub-section (1) of the book. The sub-division of the chapters into sections is also neat seems to be prevented only by a contrary intention being expressed,

and orderly, though it may perhaps be regretted that a simple and a doubt may be felt whether it will not be necessary, in every

well-known mode of facilitating reference by placing the title of the sub

division at the top of each page has not been resorted to. lease for years granted by a tenant in fee simple after the com

So much for the form of the book. With regard to the substance, mencement of the Act, to insert an express clause to prevent the shipping law being contained in a multitude of statutes, Orders in lease from operating as a conveyance of the whole fee.

Council, and reported cases, the object of the compendium is to bring

this tripartite law into one, so that the reader may find out in a page or VIII.- PRODUCTION AND SAFE CUSTODY OF TITLE DEEDS. two all that he wants upon a particular head. We have no hesitation

in saying that this object has been attained. Here and there are instances Section 9 is designed to shorten or to supersede the covenant

-e.g., at pp. 63 and 162–of too full a statement of statutory law for a often entered into by a vendor for the production of title deeds

compendium ; but, speaking generally, we find that the effect only of the retained by him as relating to other property besides the property statutes is succinctly and accurately stated. Where the exact words of sold ; and it is, therefore, closely connected with the parts of the a section, however, are reproduced at length, we miss the inverted Act which aim at effecting a direct change in the form of convey-commas which should tell the reader that the Legislature and not the ances. The general plan of the section is remarkable, as approxi

is remarkable, as approxi- / text-writer is speaking mating towards that which in our last article we suggested as

The cases are also, generally speaking, very well treated, except that

they are occasionally too much relegated to the notes (see, e.g., note f, offering a possible improvement upon the general plan of section 7;

at p. 320, relating to a “safe port”). In some instances also, as in that that is to say, it aims at adjusting the rights and liabilities of the of the

justing, the lights and havinties of the of The Teutonia (L. R. 3 A. & E. 394, 4 P. C. 171), we have too much parties by means of a code of rules without express reference to statement of fact, and too little statement of principle. As an instance the form of a covenant. But it requires a written acknowledgment of a slip in the other direction, we find a bare reference to the important or undertaking as a condition precedent to the existence of those case of Doolan v. Midland Railway Company (L. R. 2 App. Cas. 792), rights and liabilities, instead of conferring them by implication in and no mention made of the curious difference of opinion, arising out of the absence of an expressed intention to exclude them.

the subject-matter of that case, between the English and the Irish The first sub-section is as follows:

courts. In the comments on the cases, which are careful, and are seldom

absent where needed, we find too much aptness to “ distinguish," and “(1.) Where a person retains possession of documents, and gives to another too much abstinence from pronouncing an opinion. Thus, where mutual an acknowledgment in writing of the right of that other to the production of

insurance associations are dealt with (p. 443), it is by no means easy to those documents, and to delivery of copies thereof (in this section called an

see what the view of the authors, if they have one, is. acknowledgment), that acknowledgment shall have effect as in this section

Upon the general style of the work it is difficult to bestow too bigh provided."

praise. It has that very rare combination of excellences—it is at once Here we see nothing in any way to restrict the meaning of the pleasant reading and accurate. word“ person," or the word “another," or the word “ documents"; The second volume, or appendix as it is called, will be found of very or to connect the transaction with a sale or a conveyance of land great practical use. In addition to all the Merchant Shipping Statutes, or any other property. Only one condition seems to be necessary

it appears to contain some forty Orders in Council, some sixty forms, a

most elaborate “ General Table of Pilotage Authorities in England and to constitute an acknowledgment under the sub-section-viz., that

Wales, showing the extent of the limits of the jurisdiction of each possession of the documents shall have been retained. We do not

authority,” &c., and a “List of Certain Ports in Scotland and Ireland see how a person can be said to retain that which he never had; wit

he never had; with respect to which Statutory Provisions as to Pilotage exist." We and therefore we do not think it clear that acknowledgments, can only regret that so almost complete a collection should have been within the meaning of the sub-section, could be given by the pur- marred ever so little by the omission of some miuor Orders in Council (not so far as we can discover, particularized) and by the addition of that tiresome thing, a “supplementary appendix " of statutes of minor

CORRESPONDENCE. importance, and other matters.

THE SOLICITORS' REMUNERATION ACT.
PARLIAMENTARY COSTS.
PARLIAMENTARY Costs—PRIVATE Bills—ELECTION Petitions—APPEALS

[To the Editor of the Solicitors' Journal.] HOUSE OF LORDS. By EDWARD WEBSTER, Esq. FOURTH EDITION. By

Sir,—Permit me to express my sympathy with “Nemo," who writes in C. CAVANAGH, Barrister-at-Law. Stevens & Sons.

your last week's issue. I do not for a moment suppose that the Council The last edition of Webster was published in 1867, and since that date would consciously ignore or slight the interests of the bumbler members there have been passed the House of Commons Costs Taxation Act, 1879, of the profession in the matter referred to. But it takes little consideraand the Act empowering Committees on Bills confirming Provisional

tion to perceive that what may suit “Lincoln's Inn ” well enough, may, Orders to award costs. As regards costs of election petitions, the matter in the last edition has, of course, become almost completely obsolete. The

by no means, work fairly for smaller fry, who form the vast majority, result is that a large part of the book has been re-written by Mr. and to whom, moreover, the compulsory adjustment of law charges will Cavanagh. The portion relating to Costs of Election Petitions, which is be a much more serious thing than to the more fortunate few. entirely new, is well-arranged, and, so far as we have tested it, complete and accurate. The like may be said of part 3-Costs in Appeal Causes in

ALIQU18. the House of Lords. In the part of the book relating to Private Bill Costs, a table of the fees charged at the House of Lords has

[To the Editor of the Solicitors' Journal.] been added, which has been compiled with the assistance of Sir,-Referring to the letter of “ Nemo" in yonr last number, allow me the Receiver of Fees. In the section of the book on the Acts relative to give two examples of the last scale of the Incorporated Law Society. to the taxation, &c., of costs on private Bills, Mr. Cavanagh has inserted Take a mortgage of leaseholds for £500, upon which the mortgagee's a cautious discussion of the effect of the House of Commons Taxation solicitor would be entitled to £7 10s. for negotiating the loan, investi. Act, 1879, on the decision of the Master of the Rolls in In re Morley gating the title, and preparing and completing the mortgage security. (L. R. 20 Eq. 17), that the costs of applications to the Board of Trade The commission on a similar mortgage for £300 would be £4 10s. for provisional orders under the Tramways Act, 1870, are to be taxed on Can the above amounts be considered adequate remuneration for the the chancery and not on the parliamentary scale. His conclusion is work done ?

J. H. that the decision has been practically overruled by the Act, and that all the costs of obtaining a provisional order are to be charged on the par. liamentary scale. On the whole, we think that the reputation of Webster

THE PROBATE AND DIVORCE DIVISION. will not suffer in the new editor's hands.

[To the Editor of the Solicitors' Journal.] Sir,-Order 37, rule 3c, of the Rules of April, 1880, provides that in

any affidavit made by two or more deponents, it shall be sufficient to COUNTY COURTS.

state in the jurat that it was sworn by “both" or " all” the deponents. THE JURISDICTION AND PRACTICE OF THE COUNTY COURTS EXCLUSIVE OF Rule 3e provides that any alteration in the jurat to an affidavit shall be

ADMIRALTY AND BANKRUPTCY, By GEORGE WASHINGTON HEYWOOD, authenticated by the initials of the officer taking the same.
Barrister-at-Law. THIRD EDITION. W. Maxwell and Son.

The officers of the Probate and Divorce Division decline to file any This is a well-edited edition of a very good book. Mr. Heywood. affidavit in which all the deponents are not named in the jurat, or in referring in his preface to an objection we raised to his last edition, that which there is any alteration in the jurat, although the alteration may the last chapter ought to be the first, admits that the logical position of be properly marked. the last chapter onght to be at the beginning of the volume instead of The ground of such refusal is that the above rules do not apply to the the end, but justifies his retention of his former arrangement by saying

Probate and Divorce Division. that it is convenient for his plan of grouping to put it last. We cannot ! I am, of course, bound to presume that the officers are right; but why say our objection is removed, but we are willing to waive it in considera should not the same rules apply in all the Divisions ?

H. tion of the excellent arrangement of the chapters relating to the practice of the county courts. Our use in practice of the last edition has led us to form a very favourable opinion of Mr. Heywood's method of

STAMP DUTY, work. He does not shirk difficulties or abstain from the responsibility of offering practical hints for the guidance of the practitioner where no

[To the Editor of the Solicitors' Journal.] authoritative guide exists. We find the same characteristics in the Sir,-Replying to the letter of “ Inquirer," appearing in your last present edition, and have pleasure in commending it to our readers. number, it will be found that the duties payable in the cases put are

respectively-(a) £12 10s. (ad valorem settlement duty); (6) 10s.; and

(c) 10s. (respectively deed stamps). THE LAWYER'S COMPANION.

To offer a few observations in explanation and support of the above THE LAWYER'S COMPANION AND DIARY, AND LONDON AND PROVINCIAL LAW statement of the duties ; it has first to be noted that “settlement” (i.e., DIRECTORY FOR 1882. Edited by JOHN THOMPSON, Esq., Barrister-at

ad valorem) duty is payable in respect of “any definite and certain Law. THIRTY-SIXTH ANNUAL ISSUE. Stevens & Sons; Shaw & Sons. | principal sum of money, ... or any definite and certain amount of

The commencement of the legal year brings with it this excellent stock, or any security.” So, therefore, real estate and chattels do not legal annual. To those who have used it praise is unnecessary ; to

attract ad valorem or "settlement" duty, except in the rarely occurring those who have not used it we can heartily commend it.

case of the trusts extending to the raising out of such property a definite sum of money in favour of persons then (at the making of the instrument) in being. And, of conrse, in such case the duty does not attach to the

real or chattel property, but to the sum of money to be raised out of it. The state of business at Nisi Prius is, says the Times, as follows:-At the

On the other hand, a definite sum of money secured to the trusts by close of the summer sittings in Westminster there were left untried, of

covenant (or bond, or mortgage) has always officially been deemed (and causes already entered, 46 special jury and 115 common jury causes, altogether

correctly, I think) to be chargeable with the ad valorem duty in most 161 ; and there were afterwards entered 29 special jury and 245 common jury

cases of settlement, one of such being the case (a) put by “Inquirer.” causes-total, 75 special jury and 360 common jury causes. In London the November 1.

ANSWERER. totals were 101 special jury and 144 common jury causes, making together 245. Since then many other causes have been entered, and in Middlesex the whole

THE ROYAL COURTS BRANCH BANK OF ENGLAND. number now entered is 488, and in London 255. In State v. Morris (47 Conn. 179), says the Albany Law Journal, a trial for

[To the Editor of the Solicitors' Journal.] barglary, for the purpose of showing that the offence was in the night, the | Sir,-- I am not aware that any notice has yet been inserted in your State was permitted to introduce in evidence a copy of an almanac. In Mun- columns of the recent opening of a branch of the Bank of England in the shower v. State (2 Cr. L. Mag. 320), an almadac was admitted to show tbe time

new law courts, called the Law Courts Branch. of the rising of the moon on a given night. But in Sutton v. Darke (5

To this branch have been transferred the following accounts-viz. :H. & N. 647), Pollock, C.B., said, obiter, “The almanac is part of the law of England. In Regina v. Dyer (6 Mod. 41), it is stated that all the courts

(1) The Paymaster-General for the time being on behalf of the Court of agreed it was ; but it does not follow that all that is printed in every printed

Chancery ; (2) the Registrar of the Probate Registry ; (3) the Registrar almanac is part of it, as, for instance, the proper time of planting and sowing. of Causes Cash Account ; (4) the Registrar of the Admiralty Division Also in Brough v. Perkins (6 id. 81), it is stated that the almanac is part of Her Majesty's High Court of Justice ; (5) the Account of the Suitors' of the law of England; but the almanac is to go by that wbich is annexed Fund in the Queen's Bench Division of Her Majesty's High Court of to the common Prayer Book. Looking at that, I find it says nothing about Justice. the rising or setting of the sun, and I rather think that any information on It is also understood, I believe, that ordinary banking business will be ibat subject is quite recent."

transacted by this branch, and Mr. John Douglas Finney, formerly sub

ITOR.

agent of the Western Branch of the bank at Old Burlington-gardens, might be to the interest of the mortgagor so to redeem some of them; has been appointed agent.

but that the mortgagor will be able, by picking out those which he desires I think it would be a convenience to the profession generally if these to redeem, and including among them the new mortgage, to prevent the facts were more prominently brought to their notice by being published mortgagor from consolidating the rest of the old mortgages. For by in your widely-read columns.

hypothesis one of the mortgages which he seeks to redeem is “ made October 31.

after the commencement of the Act.[We announced the opening of the branch in our issue of the 8th ult., With regard to quasi-appurtenants, our correspondent, in the earlier but we are glad to be favoured with our correspondent's fuller state part of his remarks, seems not to have clearly remembered that our ment. -Ed. S. J.]

criticism expressly depended upon the insertion in the section of the words at the time of conveyance." It is therefore beside the point to cite cases in

which these or similar words do not occur. In our opinion the old. THE CONVEYANCING ACT.

fashioned practice of inserting such words as “at any time heretofore," [To the Editor of the Solicitors' Journal.]

was proper to secure the re-grant of extinguished easements. This Sir,-May I trouble you with some remarks on two heads only of your

practice fell much into desuetude ; but we see little objection to supplyvigorous criticism of the new Conveyancing Act i

ing the words by implication where they are not expressly excluded. The following paragraph in your comments on section 17 (p. 870 of

Our contention was that they and their meaning are expressly excluded your journal) seems to me to involve a fallacy :

by the words of the section “at the time of conveyance." “It would seem also to follow, by similar reasoning, that a'mortgagee

As to the latter part of our correspondent's remarks on this subject, who is entitled to the benefit of several mortgages, all executed before the

he will hardly contend that a purchaser with an implied grant such as is commencoment of the Act, will not be able to make any further advances

clearly given, according to his own showing, by the present practice, after the commencement of the Act without stipulating that this section

would not be in a better position than a purchaser with a statutory conshall not apply to any mortgage securing such advances. Also he will

vill veyance, which according to our view, would contain no grant at all. In not be able to accept a transfer of any mortgage, made after the com

this case even our correspondent seems to admit that the statutory conmencement of the Act, which does not contain a like stipulation. For he

veyance will need to be supplemented by the insertion of an express would otherwise lose the benefit of his existing right to consolidate his

grant. And he seems to forget that our remark was made subject to the existing mortgages."

hypothesis that purchases by open contract (which could not provide I need not quote here section 17, which your readers will doubtless be

expressly for anything) should become a common practice. able to refer to; but, as I read the section, its effect in the case you have

We must add that, although we have printed our correspondent's letter put would be as follows:-A mortgagor seeking to redeem either of the 1!

(as we have noticed every letter yet received upon this subject), we must earlier mortgages could still be met by a request to redeem the other, for

| decline in future to insert letters upon articles which appeared too long neither of them is made after the commencement of the Act; but neither

ago for the context to be in the minds of our readers.--Ed. S. J.) of the earlier mortgages could be consolidated with the later one, unless the latter contained an expression of a contrary intention. Is uot this the true view ?

CASES OF THE WEEK. Again, at pp. 895, 922, you appear to advise the retention of certain general words which are now used in conveyances to carry what are called quasi-easements, and which, in section 6, the Legislature has attempted APPLICATION TO ADVANCE APPEAL-Notice. In the case of In re A to render unnecessary. Quasi.easements" seem to be of two kinds Solicitor, before the Court of Appeal (Jessel, M.R., and Baggallay, Brett, and firstly, what I may call dormant rights, or rights which have been extin, Lindley, L.JJ.) on the 2nd inst., an er parte application was made to advance guished by the union of two tenements and may be revived by apt words the hearing of an appeal relating to the taxation of costs. J ESSEL, M. R., on a severance of the tenements ; secondly, what I may call incipient or

said it was not regular to make such an application ex parte; it ought to embryonic rights, those dependences of one tenement on another which,

be made upon notice.-SOLICITOR, W. H. Jackson. while both are in the same hands, are merely a part of the rights of prop.

ADMINISTRATION ACTION-CONDUCT OF PROCEEDINGS-RECEIVER-ACTIONS erty, but which draw breath, as full-grown legal easements, when, on the

IN DIFFERENT BRANCHES OF COURT.-In a case of Dowd v. Hawtin, before severance of the tenemente, similar apt expressions are used. An ease.

the Court of Appeal on the 2nd inst., a question arose as to the conduct of the ment of the former kind was revived (or, more accurately, re-created) by proceedings in an administration action. An action for the administration of the the words, “appurtenances. . . therewith usually held, used, oc- 1 personal estate of an intestate was commenced in the court of Bacon, V.C., cupied, or enjoyed," in James v. Plant (4 A. & E. 749); an easement of against the administrator, the plaintiffs being next of kin of the intestate, and the second kind was created de novo in Wardle v. Brocklehurst (1 E. & an administration judgment was obtained. The administrator afterwards E. 1058), by the words “ all waters and watercourses used, occupied, or brought an action in the court of Hall, V.C., to administer the estate of enjoyed with the premises." Now, by section 6 of the Act, a convey another person to a share of whose estate the intestate was entitled, and in ance is to include, not all easements only, as your criticism implies, but

this second action a judgment for administration was obtained. Afterwards all " easements, rights, and advantages whatsoever ” which are " at the

the administrator (the defendant in the first and the plaintiff in the second time of conveyance demised, occupied, or enjoyed with " the property

action) became a bankrupt. The plaintiff in the first action then applied to conveyed. I think that with these words to rely on, we may safely allow

Bacon, V.C., for the appointment of a receiver of the intestate's estate, and for

an order giving the conduct of the proceedings in the second action to the general words to disappear altogether from our conveyances.

plaintiff in the first. Bacon, V.C., appointed a receiver, but refused the rest You have another objection to the words “at the time of conveyance"

of the application. The plaintiff appealed from the refusal, and on in section 6. " What are we to say,you ask at p. 923, “about appur. bebalf of the respondent (the administrator) it was urged that the ordinary tenants or reputed appurtenants, which admit of being altered, released, practice of the court in such a cuss was to give tbe conduct of the second extinguished, or interrupted, between the time of making the contract and action, not to the plaintiff in the first, but to the receiver, and also that the the time of making the conveyance ? does it not seem that these would application to obange the conduct of the proceedings in the second action pass, if at all, not as they existed at the former time, but as they existed oaght to have been made, not to Bacon, V.C., bat to Hall, V.C., in whose at the latter time?”

court the judgment in that action had been obtained. The Court of Appeal Undoubtedly; but the parchaser will see, as you say he does under the (JESSEL, M.R., and BAGGALLAY, BRETT, and LINDLEY, L.JJ.) held that the present practice, “that the conveyance expressly (or impliedly] includes

application bad been made in the proper court, and that the second part of all that he bargains for at the time of the contract." If any appurten

it ought to have been granted as well as tbe first. JESSEL, M.R., said that ants for which he bargained are released between contract and convey

the practioe now is different from wbat it was in the time of Lord Eldon ; ance, he will have exactly the same remedies as those which he now

tbe conduot of an action is never now given to a receiver. In the present enjoys. The words which you disparage only mean that the conveyance

| case, the administrator baviog become a bankrupt, he was not a fit person shall not operate to pass what the grantor no longer possesses.

to be a trustee or to conduct the second action, and the application to take

the condact away from biva ought to have been granted as a matter of Lincoln's-inn, November 1.

G. C.

course. No opposition could have been raised to it by the bankrupt, who [As to the first part of our correspondent's remarks, we have nothing bad no interest in the matter. The only person who had any interest in to say against his “true view"; but we cannot see how it conflicts opposing the application was the solicitor of tbe administrator, by reason with the passage which he cites from our article. What in sub- 0 bis interest in the costs. The opposition had been improperly section (3) can be the meaning of “the mortgages," except “the raised, and the respondent must pay the costs of the appeal. BRETT, L.J., mortgages which the mortgagor seeks to redeem, and which, if said he thought the application had been made in the proper court. LINDan action is brought, are the subject of the redemption action ?"

LEY, L.J., said that it could not be right that the bankrupt administrator Suppose a mortgagee to be entitled to the benefit of a number of

should continue to bave the conduct of the second action : the condnot mortgages (call them the old mortgages) all made by the same mortgagor

| ought to be given either to the plaintiff in the first aotion or to the receiver, before the commencement of the Act; and afterwards to get into his

and it was a mere matter of practice to wbioh of them it should be given.

SOLICITORS, H. W. Chatterton; R. M. & F. Lowe. hands another mortgage (call it the new mortgage) made by the same mortgagor after the commencement of the Act and containing nothing to exclude the operation of section 17. We say that he would then lose bis right to consolidate even the old mortgages. We do not mean that Mr. Justice North Bat in Banc on Wednesday, when there was a none of them will in fact ever be redeemed simultaneously; because it large attendance of the equity bar to welcome the newly appointed judge.

wber,

COUNTY COURTS.

THE JUDGES ON ASSIZE REFORM. ABERYSTWITH. (Before HOMERSHAM Cox, Esq., Judge.)

Ar the Cambridge Winter Agsizes the Lord Chief Justice, in the course of

his charge to the grand jury, congratulated them upon the small amount Oct. 20.-Aberystwith Mutual Ship Insurance Society v. Davies.

of crime with which they were called upon to deal. There were only two The facts of the case appear from the judgment.

prisoners, one of whom was from each county. This was exactly the same His HONOUR.- The plaintiffs in this case are a registered joint stock com number of prisoners they had at Norwiob. The question of the necessity pany, established in 1853, for the mutual insurance by the members of the of such frequent holding of assizes had been raiged, and, of course, in a society of ships belonging to the port of Aberystwith. The business was perfect state of the law a person oharged with an offence ought to be tried carried op under the rules contained in a deed of settlement dated the 30th of directly the prosecution was ready and the prisoner prepared with his December, 1853. One of those rules, rule 53, authorized the directors defence. That, however, could not be done without a great increase in the "from time to time to make calls or demands of money upon the members in cost of the administration of the law, and there were other considerations proportion to the amount of the respective sums for the time being insured." which could not be disregarded. There were twenty-three gentlemen of the Another rule, rule 45, provided that no person should become a member

grand jary, and sixty summoned on the common jury, and altogether about until he executed the deed of settlement or some deed of accession tbereto.

one hundred persons were brought away from their ordinary avocations at On the 1st of January, 1879, the defendant Eliza Davies, being the ship's

considerable inconvenience to try these two criminals. This was manihusband of the ship Sarah Davies, paid to the society a deposit of £12 12s.

festly a question to be cousidered, but it was not for him to suggest a for the purpose of insuring the sum of £840 in respect of the ship, and took

remedy. It had been suggested, however, that the assizes should be held a receipt from the society for that deposit. But Eliza Davies never executed

less frequently, and that the power of admitting prisoners to bail should be the deed of settlement or any deed in accession thereto.

extended. It was now exercised to a greater extent than it was in former In December, 1879, the directors made a call of £1 2s. 63. in the pound

times when he was a young man, and he believed from what he had heard, deposit, and they now gue the defendant Eliza Davies on that call. On her

and from experience, that prisoners very rarely failed to surrender to take behalf it is contended (among other things) that she is not liable as she is not

their trial wher admitted to bail. However, they had better means of a member of the society, because rule 45 bas not been complied with,

knowing whether this was so than he had, and he would not express an In several material respects the facts of the present case are similar to those

opinion whether the extension of bail to nearly all charges would meet the of the case of Edwards v. Aberayron Mutual Ship Insurance Society (L. R. 1 Q. B. D. 563). That case was heard in the Queen's Bench Division and subse

case. The grand jury having completed their labours, the foreman, Mr. E.

Hicke, M.P., said he had been requested on behalf of the grand jary to say quently, by way of appeal, in the Exchequer Chamber.

that they fally concurred with his lordship's remarks as to the holding of The plaintiff sought to recover a sum of money in respect of the total loss

four assizes in each year. of a vessel. For the present purpose it is sufficient to quote the following

They considered that the present arrangement passage from the judgment of Mr. Justice Blackburn, premising that the

was a great waste of judicial power, and imposed unnecessary burdens on all plaintiff was the equitable owner and one Davies the registered owner of the

persoas connected with the administration of justice in the county. They

would be very glad if, by his lordship's influence and representation, the vessel :-“ Davies acting as ship's husband first insured The Hermione for £1,000. The defendants accepted the insurance and received the premium;

present state of things could be altered. The Lord Chief Justice said he one or two years went by during which the defendants made calls upon the

would take care to communicate the opinion of the grand jary to plaintiff as owner of The Hermione and a member of the society. But when

the Home Secretary, who was the only person with whom he could the ship is lost the defendants refase to pay the insurance, and it is contended

oom municate on the subject. He must, however, remark that the tbat the plaintiff, who caused his interest in the ship to be insured, cannot

true way to alter the present state of things was by the influence recover for the loss as a member of the defendants' society, on the ground that

of Parliament. The House of Commons was the party to influence, and he never in fact signed a copy of the articles. The answer is obvious: that as

if they could be broaght to agree to an alteration he should be glad. the directors chose to accept an insurance on The Hermione, and thereby

In charging the grand jury at Exeter on Monday Mr. Justice Watkin made the owner a member of the society and treated him as such, and made

Williams made some observations upon a matter that was attracting a great calls on him as sucb, they are precluded from saying that he is not a member

deal of attention, both from grand jurymen and judges, with regard to the of the society."

frequency of holding these assizes. We have (he said) ageizes and gaol The decision of the Queen's Bench was to this effect, and was upheld on

deliveries held four times a year. In my humble opinion it would be perthis point in the Court of Appeal; though the decision of the Queen's Bench

Bench | fectly impossible to recede from a quarterly gaol delivery, for I think it is the on a different point was reversed.

feeling and opinion of every body that if persons are charged with offences It appears to me that the present case is analogous. It is true that the

many of them possibly innocent, or if not innocent, persons who would not be position of the parties is reversed: that the insurance society are the plaintiffs convicted-16

convicted-it is almost barbarous that they should be kept in prison without and the owner is the defendant. But the principle involved is the same as in undergoing trial perhaps five or six months. It is a very serious question tbe case cited. The defendant baving paid premiums on a policy cannot be

whether there is not some new course of bringing together the machinery heard to say that she is not a member of the society if the rescal had been of quarter sessions and assizes. You have perhaps a quarter session one lost during the period covered by the policy, she could have sued successfully week, and a week or a fortnight afterwards you have a similar machinery for the guiou for which she was insured. There would be a want of mutuality it brought together to try what, with very few exceptions, are a very similar the one party to the contract were liable to fulfil it and not the other. I am

class of prisoners. That does strike one as an absurdity. I venture to clearly of opinion that, though tbe defendant did not sign the document men

suggest for your consideration whether it would not be possible to upíte tioned in rule 45 of the society's rules, she is liable on the contract.

or associate together the quarter sessions and the assize. For my own part, Then it was urged that, as the vessel was not classed, she was not a proper

I see no practical difficulty in it at all. But there may be practical subject for insurance. But the defendant cannot take advantage of her own

difficulties, and that is why I call the attention of gentlemen of your wrong; having chosen to insure the vessel she cannot turn round and say she

experience to them in order that before the matter is considered by the

authorities—as it must be and will be shortly-any difficulties which may was not fit to be iosured. I am of opinion that the policy, notwithstanding technical informalities, was

present themselves may be met and overcome. My impression is that valid, and, therefore, the judgment will be for the plaintiff, with costs.

instead of having quarter sessions one week and an assize the next, the sessions and assize might be held together, so that by this arrangement all the prisoners in gaol may be delivered, tried, and disposed of at least once a

quarter, and if it is thought necessary by the local authorities to have the OBITUARY.

assistance of a judge from the High Court of Justice they can demand it,

it not they need not do so. There would be thus no double machinery at MR. WILLIAM SMITH.

work, and the inconvenience of bringing gentlemen together so frequently

would be avoided; while, as it seems to me, increased efficiency Mr. William Smith, solicitor, of Winchcomb, died on the 20th ult. Mr.

will result. My impression is that it would be of very great advantage to Smith was born in 1811, and was admitted a solicitor in 1838. He had a good the indges as well as to the local magistrates that they should be associated local practice, and he had been for many years under-bailiff for the borough

| together in the administration of the law of the country. It would be a of Wiacbcomb. He had also been for a short time registrar of the Winchcomb

| mutual advantage, as it seems to me, and of no inconvenience that I am at County Court (Circuit No. 53). Mr. Smith had taken an active part in all

present acquainted with—at least, no inconvenience that might not be satislocal business, and he was for several years a member of the Winchcomb

| factorily dealt with. There is one other thing I desire to mention, because it Board of Guardians, and also of the Burial Board, and Highway Board. The

| bas been much commented upon, that is, the waste of time arising from the Winobcomb Infant School was built at his exclusive cost. At the sitting of the Winchcomb County Court on the 26th ult., the judge (Mr. Sumner)

occasional too large allowance of time for the trial of the assize. Let me give

you an illustration of what I mean. After the best information that could be expressed his sorrow at Mr. Smith's death, and his sense of the ability with

obtained, I allowed a woek for the Bristol Assizes, but the business took only two which the deceased had performed his duties as registrar of the court.

days to transact. Those who are acquainted with the details of assize arrangeMR. WILLIAM GREENE ATKINSON,

ments will quite understand how it happens. It is absolutely necessary to fix

the time some few weeks in advance in consequence of the number of persons Mr. William Greene Atkinson, barrister, librarian of the Patent Office who have to be notified and the number of officials who are brought Library, died at his residence, 59, Rowan-road, Hammersmith, on September together; and when we bave to fix the time beforeband we are in this diffi18. Mr. Atkinson was born in 1810, and was called to the bar at the Middle culty, that we must make allowance for cases that may possibly come in Temple, in Michaelmas Term, 1841. In 1854 he was appointed librarian of during the interval. In doing that you may allow too long a time, wbile, the library at the Great Seal Patent Office, and held that office until his death. on the other hand, great inconvenience sometimes arises from too short a Mr. Atkinson was most indefatigable in the discharge of his official duties, time being allowed. lo my own personal experience tbis happened last and his services were highly valued by the Commissioners of Trade-Marks. week. Ať Chester a week had been allowed for the assize, but ia conseHe had prepared, with great labour, the manuscript catalogue of the library, quence of two very long cases-one a murder, the other a burglary—the and he was editor of the Commissioners of Patents' Journal.”

time was not sufficient. There is consequently great practical difficulty in the

« PreviousContinue »