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able that the judges of the Court of Appeal should be so far divorced from practice that they should have to take instruction in it from time to time when it happens to become important that they should know it? For the same reason that it is desirable that they should preside at the trial of causes, and for the very purpose of enabling them to preside efficiently, it may be urged that they should preserve a frequent and intimate connection with the whole course which is pursued by those matters, the substantial issues in which come before them for decision. It may be doubted whether their time could be better occupied.
But an objection may be raised to this proposal, founded on the well-known distrust with which a court of two is regarded. It is often said (and what is said represents the truth to a very large extent) that in such a court, if both judges are strong, they will differ; if one is strong and one is weak, the strong man absorbs the weak one, and if both are weak they only coincide in infirmity. The first is the dangerous case here, for it may be fairly assumed that the judges of the Court of Appeal are strong, though not all perfect equals in strength. But when the matter is looked at it will be found that what constitutes an objection when the matter for decision is a rule of substantive law, or the application of such a rule to facts, is removed or becomes a positive advantage when the matter in question is one of procedure. Such matters are not matters of strict logic but of practical convenience. A court which is to regulate and harmonize practice will not be one in which such strong individual views are likely to prevail. If there be a difference of opinion in the application of a rule to facts, the necessary result of having the decision affirmed will in this class of cases be a sufficient presumption of its correctness. If the court differ as to a rule, it will be almost a matter of course that, as has happened on several occasions, their ultimate decision will be that of others as well as of themselves, and the rule laid down will gain additional weight from that circumstance.
But we may, perhaps, adduce a stronger argument—namely, the provision of section 12 of the Judicature Act, 1875, which (in this respect varying the rule of section 53 of the Act of 1873) allows appeals in interlocutory matters to be heard before two judges only. Hitherto this provision has been practically a dead letter, because it is rarely convenient or possible to constitute a court of two without discharging a third from duty; but under the proposal we venture to make, the intention of the Legislature would have practical effect given to it.
But will there be any difficulty in supplying this court from the Court of Appeal? When the Court of Appeal came into full working order after the Appellate Jurisdiction Act, it numbered, excluding the Lord Chancellor, but including the Master of the Rolls, who sat frequently, and the three chiefs, who sat occasionally, nine members. It now numbers, still excluding the Lord Chancellor, but including the Master of the Rolls as a permanent judge, and the Lord Chief Justice, only seven members. At the former period then it was possible to find nine judges of the first rank and weight. Why will it be now impossible to find other nine of equal calibre P If then the Lord Chief Justice, who has other great and important duties to discharge, be omitted, there would remain eight working members—enough to form two courts of three for the hearing of ordinary appeals, and one court of two for hearing appeals on points of practice. So far no difficulty need be feared; and this gain will be effected, that the remaining Courts of Appeal, relieved from the hearing of practice cases, will be able to devote their whole time and energy to disposing without interruption of the ordinary work; which may, perhaps, be found to give other advantages which we have not here space to discuss.
We were lately favoured, says the Scottish Journal of Jurisprudence, with a sight of a proof copy of Mr. Curror'a proposed "Agricultural Holdings (Scotland) Bill," and were much amused thereat. The errors and eccentricities of parliamentary draftsmen have often been adverted to, but we conceive that nothing similar to the following has ever been unearthed from the stores of forgotten or abortive pieces of legislation. This is what is given in the clause containing the definition of terms used in the Bill •a the definition of trespasser! :—"' Trespassers' means the fauna of the country whether wild or domesticated, and includes mankind." The picture of the sporting farmer, fired with indignation against trespassers, going out to shoot "the fauna of the country " is.irresistibly ludicrous; "which includes mankind" is a touoh of genius quite unapproachable.
THE PRACTICAL EFFECT OF THE
VI.—Covenants roit Title (continued). Befoke we sum up the practical results of our inquiries into section 7, the reader's attention must be directed to one of its provisions not yet noticed by us.
"(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 tlie like manner, and with all the like incidents, effects, and consequences, as if such variations or extensions were directed in this section to be implied."
There is nothing here said to restrict the deed varying the implied covenants to the deed in which the covenants are implied, and therefore it would seem that the covenants for title may be varied or extended at any time after the conveyance by a separate deed. The operation of a subsequent deed may be somewhat doubtful, but there seems to be no doubt that the implied covenants may be varied and extended at the - pleasure of the parties, so that it be done by the deed in which the covenants are implied; and the varied or extended covenants are to operate in like manner, &c, as if the variations or extensions had been directed in the section to be implied. It would, therefore, seem that the incident of "running," not only "with the land," but with any part of the estate of the purchaser, will be attached to such variations and extensions. It is, therefore, a question of much interest what the expression " may be varied or extended" occurring in sub-section (7), may be taken to imply. Would it, for example, authorize the insertion in the conveyance of the ordinary covenants for title, accompanied by a declaration that they should be construed as variations or extensions of the implied covenants by virtue of section 7, sub-section (7) t If this suggestion should be found to be within the intention of subsection (7), it seems to offer a method by which to avoid all the disadvantages which we are compelled to think inseparable from the implied covenants given in the Act, and at the same time to secure for the purchaser all the benefits offered by subsection (6).
To sum up the effect of this section: From the point of vitw of the vendor the implied covenants given by the Act seem to offer him a slight advantage, carrying back the chain of covenants only to the last purchase for value, whether any covenants for title were then entered into or not. This is in accordance with the view which we have above expressed on the scope of the covenants; but we may mention that the learned authors of a recently published textbook doubt whether the words "except by purchase for value" import the restriction by us attributed to it, seeming to think that, in some cases, a covenant so qualified would " extend to the acts of every person in the chain of title who did not take the estate as a purchaser for value, notwithstanding the intervention of a purchaser for value." If this latter view be correct, the burden, in this respect upon the vendor will be very largely increased, instead of being a little diminished. The burden seems, at all events, to be increased for the vendor, by reason of his increased liability to be sued by sub-assigns of the purchaser for a breach of the covenants. So, at least, we understand the words of sub-section (6), "The benefit of a covenant implied as aforesaid . .. . shall be capable of being enforced by every person in whom" the estate of the purchaser "is, for the whole or any part thereof, from time to time vested;" though it is not usual to speak of enforcing the benefit of a covenant. If our view be taken of the effect of the qualification, "otherwise than by purchase for value," these 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 rather from the side of the purchaser. Putting aside, as unworthy of notice, the trifling saving of a few folios in the engrossment, wo have to inquire what compensation they offer for their greater difficulties of interpretation as compared with the usual express covenants. There is little probability that the effect of their adoption will be to make the costs of the transaction less to the purchaser; for no one supposes that the scale to be settled under the Solicitors' Remuneration Act will afford a less remuneration to the solicitor carrying out the purchase than is afforded by the present practice. And while we admit that the purchaser gains something from the increased facility of enforcing the covenants given by sub-section (6), we own that this seems to us to be one of those advantages which may be accepted as a gift, but are hardly worth buying.
VII.—"all The Estate" Clause.
In an early article we alluded to 'the peculiar distribution of subjects in the Act. We had then particularly in mind, among other things, section 63, which is as follows:—
"63.—(1.) Every conveyance shall, by virtue of this Act, bo effectual to pass all the estate, right, title, interest, claim, and demand which the conveyancing parties respectively have, in, to, or on tho property conveyed, or expressed or intended so to be, or which they respectively have power to convey in, to, or on the same.
"( 2.) This section applies only if and as far as a contrary intention is not express ed in the conveyance, and shall have effect subject to the terms of the conveyance and to the provisions therein contained.
"(3). This section applies only to conveyances mado after the commencement of the Act."
We think it convenient to place together those'parts of the Act which aim at effecting a direct change in the external form of conveyances.
We may plausibly suppose the design of the section to have been to insert the clause by implication in all those deeds in which, under the present practice, it is expressly inserted. But under the present practice, the clause is never expressly inserted in leases, in which, nevertheless, it would seem to be implied under the present section. By the interpretation clause, section 2, sub-section (v.), conveyance, unless a contrary intention appears, includes lease; and we fail in section 63 to discern any sufficient manifestation of an intention to exclude it. In section 7, " demise by way of lease at a rent" is specially excluded from "conveyance" by a special interpretation clause applying only to that section. This is a ground for concluding that in sections of the Act which contain no such special provision the general interpretation clause is intended to take effect. It would, therefore, seem that, after the commencement of the Act, every lease for years made by an owner in fee simple would be prevented from operating, under section 63, sub-section (1), as a conveyance of the whole fee only by the restriction contained in sub-section (2). Moreover, since the operation of sub-section (1) seems to be prevented only by a contrary intention being expressed, a doubt may be felt whether it will not be necessary, in every lease for years granted by a tenant in fee simple after the commencement of the Act, to insert an express clause to prevent the lease from operating as a conveyance of the whole fee.
VIII.—Phoduction And Safe Custodt Op Titlk Deeds.
Section 9 is designed to shorten or to supersede the covenant often entered into by a vendor for the production of title deeds retained by him as relating to other property besides the property sold; and it is, therefore, closely connected with tho parts of the Act which aim at effecting a direct change in the form of conveyances. The general plan of the section is remarkable, as approximating towards that which in our last article we suggested as offering a possible improvement upon the general plan of section 7; that is to say, it aims at adjusting the rights and liabilities of the parties by means of a code of rules without express reference to the form of a covenant. But it requires a written acknowledgment or undertaking as a condition precedent to the existence of those rights and liabilities, instead of conferring them by implication in the absence of an expressed intention to exclude them.
The first sub-section is as follows:—
"(1.) Where a person retains possession of documents, and gives to another an acknowledgment in writing of the right of that other to the production of those documents, and to delivery of copies thereof (in this section called an acknowledgment), that acknowledgment shall have effect as in this section provided."
Here we see nothing in any way to restrict the meaning of the word " person," or the word "another," or the word " documents "; or to connect the transaction with a sale or a conveyance of land or any other property. Only one condition seems to be ^necessary to constitute an acknowledgment under the sub-section—viz., that possession of the documents shall have been retained. Wc do not see how a person can be said to retain that which he never had; and therefore we do not think it clear that acknowledgments, within the meaning of the sub-section, could be given by the pur
chaser of the largest lot, and recipient of the title deeds, at an auction to the purchasers of the smaller lots.
MERCHANT SHIPPING. A Compendium Op The Law or Merchant Shipping: With An Appendix
CONTAINING ALL THE STATUTES, ORDERS IN COUNCIL, AND FORMS OP
Practical Utility. By Frederic Philip Maude and Charles Edward Pollock, Barristers-at-Law. Fourth Edition. By the Hon. Baron Pollock and Gainsford Bruce, Barristers-at-Law. Henry Sweet.
"The first edition of this work," we are told in tho preface, "was published in 1853. It formed the labour of two young barristers, at a time when business either in court or chambers had scarcely begun to find them occupation." The present edition had made great progress so far back ns 1870, but its completion was stayed by the death of 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 taken up anew by the surviving author and Mr. Gainsford Bruce."
The result is now before us in two large and handsome volumes, the first being the "compendium" properly so called, and the second an appendix containing the text of all the statutes and Orders in Council •' not ordinarily to be found except in the columns of the Gazette—with the exception}of a few of minor importance"—having the force of law relating to merchant shipping, so as to be of service, "not only to the legal profession, but to consuls at foreign ports, commanders of Queen's ships, and shipowners, and others concerned in shipping."
It having been so long a time—seventeen years—since the last edition was published, we may perhaps as well criticize the book as if it were a new one, especially as no less than forty-three enactments connected with the subject appear from the appendix to have been passed since 18G4.
And, first, the arrangement of chapters—" Title to Ships, The Owner, The Master, The Crew, The Pilot, Contract of Affreightment and its Incidents, Insurance, Hypothecation and Sale, Collision, Salvage, Towage, Wreck and Shipping Casualties, and Passengers "—seems to us to be good, except that " Towage" appears to be a little out of its place; the division of two of the chapters into parts is unfortunate, and the chapter on " Passengers" ought either to have been omitted in a compendium on " Merchant Shipping" or to have caused an enlargement of the title of the book. The sub-division of the chapters into sections is also neat and orderly, though it may perhaps be regretted that a simple and well-known mode of facilitating reference by placing the title of the subdivision at the top of each page has not been resorted to.
So much for the form of the book. With regard to the substance, shipping law being contained in a multitude of statutes, Orders in 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 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 —e.g., at pp. 63 and 162—of too full a statement of statutory law for a compendium; but, speaking generally, we find that the effect only of the statutes is succinctly and accurately stated. Where the exact words of a section, however, are reproduced at length, we miss the inverted commas which should tell the reader that the Legislature and not the text-writer is speaking.
The cases are also, generally speaking, very well treated, except that they are occasionally too much relegated to the notes (see, e.g., note /, at p. 320, relating to a "safe port"). In some instances also, as in that of The Teutonia (L. R. 3 A. & E. 394, 4 P. C. 171), we have too much statement of fact, and too little statement of principle. As an instance of a slip in the other direction, we find a bare reference to the important case of Doolan v. Midland Railway Company (L. R. 2 App. Cas. 792), and no mention made of the curious difference of opinion, arising out of the subject-matter of that case, between the English and the Irish courts. In the comments on the cases, which are careful, and are seldom absent where needed, we find too much aptness to "distinguish," and too much abstinence from pronouncing an opinion. Thus, where mutual insurance associations are dealt with (p. 443), it is by no means easy to see what the view of the authors, if they have one, is.
Upon the general style of the work it is difficult to bestow too high praise. It has that very rare combination of excellences—it is at once pleasant reading and accurate.
The second volume, or appendix as it is called, will be found of very great practical use. In addition to all the Merchant Shipping Statutes, it appears to contain some forty Orders in Counoil, some sixty forms, a most elaborate "General Table of Pilotage Authorities in England and Wales, showing the extent of the limits of the jurisdiction of each authority," &c, and a "List of Certain Ports in Scotland and Ireland with respect to which Statutory Provisions as to Pilotage exist." We can only regret that so almost complete a collection should have been marred ever so little by the omission of some miuor Orders in Counoil
(not so far as we can discover, particularized) and by the addition of that thing, a "supplementary appendix" of statutes of minor , and other matters.
Parliamentary Costs—Private Bills—Election Petitions—Appeals Housb or Lords. By Edward Webster, Esq. Fourth Edition. By C. Cava*Agii, Barrister-at-Law. Stevens & Sons.
The last edition of Webster was published in 1867, and since that dale there have been passed the House of Commons Costs Taxation Act, 1879, and the Act empowering Committees on Bills confirming Provisional Orders to award costs. As regards costs of election petitions, the matter in the hut edition has, of course, become almost completely obsolete. The result is that a large part of the book has been re-written by Mr. Cavanagh. The portion relating to Costs of Election Petitions, which is entirely new, is well-arranged, and, so far ns we have tested it, complete and accurate. The like may be said of part 3—Costs in Appeal Causes in 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 been added, which has been compiled with the assistance of the Receiver of Fees. In the section of the book on the Acts relative to the taxation, Sec, of costs on private Bills, Mr. Cavanagh has inserted a cautious discussion of the effect of the House of Commons Taxation Act, 1879, on the decision of the Master of the Rolls in In re Morley (L.R. 20 Eq. 17), that the costs of applications to the Board of Trade for provisional orders under the Tramways Act, 1870, are to be taxed on the chancery and not on tho parliamentary scale. His conclusion is that the decision has been practically overruled by tho Act, and that all the costs of obtaining a provisional order are to be charged on the parliamentary scale. On the whole, we think that the reputation of Webster will not suffer in the new editor's hands.
COUNTY COURTS. The Jurisdiction And Practice Op The County Courts Exclusive Op Admiralty And Bankruptcy. By Georoe Washington Hey Wood, Barrister-at-Law. Third Edition. W. Maxwell and Son.
This is a well-edited edition of a very good book. Mr. Hey wood, referring in his preface to an objection we raised to his last edition, that the last chapter ought to be the first, admits that the logical position of the last chapter ought to be at the beginning of the volume instead of the end, but justifies his retention of his former arrangement by saying that it is convenient for his plan of grouping to put it last. We cannot •ay our objection is removed, but we are willing to waive it in consideration 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 u« to form a very favourable opinion of Mr. Heywood's method of work. He does not shirk difficulties or abstain from the responsibility of offering practical hints for the guidance of the practitioner where no authoritative guide exists. We find the same characteristics in the present edition, and have pleasure in commending it to our readers.
THE LAWYER'S COMPANION. The Lawyer's Companion And Diary, And London And Provincial Law Directory Por 1882. Edited by John Thompson, Esq., Barrister-atLaw. Thirty-sixth Annual Issue. Stevens & Sons; Shaw & Sons. The commencement of the legal year brings with it this excellent legal annual. To those who have used it praise is unnecessary; to who have not used it we can heartily commend it.
The state of business at Ami Prius is, says the Times, as follows:—At the clon of the rammer sittings in Westminster there were left untried, of <auses already entered, 46 special jury and 115 common jury causes, altogether 161 . and there were afterwards entered 29 special jory and 245 common jury causes—total, 75 special jury and 360 common jury causes. In London the totals were 1C1 special jury and 144 common jury causes, making together 245. Since then many other causes have been entered, and in Middlesex the whole number now entered is -138, and in London 255.
In State v. Morris (47 Conn. 179), says the Albany Law Journal, a trial for burglary, for the purpose of showing that the offence was in the night, the State was permitted to introduce in evidence a copy of an almanac. In Muntkew*r State (2Cr. L. Mag. 320), an almanac was admitted to show tbe time of tbe rising of the moon on a given night. But in Sutton v. Darke (5 H. St N. 647), Pollock, C.B., said, obiter, "The almanac is part of the law of England. In Ileginav. Dyer (6 Mod. 41), it is stated that all tho courts sgTeed it was; but it does not follow that all that is printed in evory printed almanac is part of it, as, for instance, tbe proper time of planting and sowing. Also in Brough v. Perkins (6 id, 81), it is stated that tbe almanac is part of the law of England; bat the almanac is to go by that which is annexed to the common Prayer Book. Looking at that, I find it says nothing about : of the sun, and I rather think that any information on
THE SOLICITORS' REMUNERATION ACT. [To the Editor of the Solicitors' Journal.'] Sir,—Permit me to express my sympathy with "Nemo," who writes in your last week's issue. I do not for a moment suppose that the Council would consciously ignore or slight the interests of the humbler members of the profession in the matter referred to. But it takes little consideration to perceive that what may suit " Lincoln's Inn" well enough, may, by no means, work fairly for smaller fry, who form the vast majority, and to whom, moreover, the compulsory adjustment of law charges will be a much more serious thing than to tbe more fortunate few.
[To the Editor of the Solicitors' Journal.']
Sir,—Referring to the letter of " Nemo " in yonr last number, allow me to give two examples of the last scale of the Incorporated Law Society.
Take a mortgage of leaseholds for £500, upon which the mortgagee's solicitor would be entitled to £7 10s. for negotiating the loan, investigating the title, and preparing and completing the mortgage security. The commission on a similar mortgage for £300 would be £4 10s.
Can the above amounts be considered adequate remuneration for the work done? J. H.
THE PROBATE AND DIVORCE DIVISION.
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 state in the jurat that it was sworn by " both " or " all" the deponents.
Rule 3e provides that any alteration in the jurat to an affidavit shall be authenticated by the initials of tbe officer taking the same.
The officers of the Probate and Divorce Division decline to file any affidavit in which all the deponents are not named in the jurat, or in which th6re is any alteration in the jurat, although the alteration may be properly marked.
The ground of such refusal is that the above rules do not apply to the Probate and Divoroe Division.
I am, of course, bound to presume that the officers are right; but why should not tbe same rules apply in all the Divisions f H.
Sir,—Replying to the letter of "Inquirer," appearing iu your last number, it will be found that the duties payable in the cases put are respectively—(a) £12 10s. (ad valorem settlement duty); (4) 10s.; and (c) 10s. (respectively deed stamps).
To offer a few observations in explanation and support of the above statement of the duties; it has first to be noted that "settlement" (i.e., ad valorem) duty is payable in respect of "any definite and certain principal sum of money, ... or any definite and certain amount of stock, or any security." So, therefore, real estate and chattels do not attract ad valorem or "settlement" duty, except in the rarely occurring 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 course, in such Cbbo the duty does not attach to the real or chattel property, but to the sum of money to be raised out of it.
On the other hand, a definite sum of mouey secured to the trusts by covenant (or bond, or mortgage) has always officially been deemed (and correctly, I think) to be chargeable with the ad valorem duty in most cases of settlement, one of such being the cose (a) put by "Inquirer."
November 1. Answerer.
THE ROYAL COURTS BRANCH BANK OF ENGLAND.
Sir,—I am not aware that any notice has yet been inserted in your columns of the recent opening of a branch of the Bank of England in the new law courts, called the Law Courts Branch.
To this branch have been transferred the following accounts—viz. :— (1) The Paymaster-General for the time being on behalf of the Court of Chancery; (2) the Registrar of the Probate Registry; (3) the Registrar of Causes Cash Account; (4) tho Registrar of tho Admiralty Division of Her Majesty's High Court of Justice; (5) the Account of the Suitors' Fund in the Queen's Bench Division of Her Majesty's High Court of Justice.
It is also understood, I believe, that ordinary banking business will be transacted by this branch, and Mr. John Douglas Finney, formerly sub
agent of the Western 'Branch of the bank at Old Burlington-gardens, has been appointed agent.
I think it would be a convenienee to the profession generally if these facts were more prominently brought to their notice by being published in your widely-read columns. City Solicitor.
[We announced the opening of the branch in our issue of the 8th ult., but we are glad to be favoured with our correspondent'!! fuller statement.—Ed. S. J.]
THE CONVEYANCING ACT.
Sir,—May I trouble you with some remarks on two heads only of your vigorous criticism of the new Conveyancing Act F
The following paragraph in your comments on section 17 (p. 870 of yonr journal) seems to me to involve a fallacy :—
"It would seem also to follow, by similar reasoning, that a'mortgagee who is entitled to the benefit of several mortgages, all executed before the commencement of the Act, will not be able to make any further advances after the commencement of the Act without stipulating that this section shall not apply to any mortgage securing such advances. Also he will not be able to accept a transfer of any moitgage, made after the commencement of the Act, which does not contain a like stipulation. For he would otherwise lose the benefit of his existing right to consolidate his existing mortgages."
I need not quote here section 17, which your readers will doubtless be able to refer to; but, as I read the section, its effect in the case you have put would be as follows:—A mortgagor seeking to redeem either of the earlier mortgages could still be met by a request to redeem the other, for neither of them is made after the commencement of the Act; but neither of the earlier mortgages could be consolidated with the later one, unless the latter contained an expression of a contrary intention. Is not this the true view f
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 "2«asi-easements," and which, in section 6, the Legislature has attempted to render unnecessary. "Quasi-easements" seem to be of two kinds— firstly, what I may call dormant rights, or rights which have been extinguished by the union of two tenements and may be revived by apt words on a severance of the tenements; secondly, what I may call incipient or embryonic rights, those dependences of one tenement on another which, while both are in the same hands, are merely a part of the rights of property, but which draw breath, as full-grown legal easements, when, on the severance of the tenements, similar apt expressions are used. An easement of the former kind was revived (or, more accurately, re-created) by the words, "appurtenances . . . therewith usually held, used, occupied, or enjoyed," in James v. Plant (4 A. & E. 749); an easement of the second kind was created de novo in IVardle v. Broclclehurst (1 E. & E. 1058), by the words " all waters and watercourses used, occupied, or enjoyed with the premises." Now, by section 6 of the Act, a conveyance is to include, not all easements only, as your criticism implies, but all " easements, rights, and advantages whatsoever" which are " at the time of conveyance demised, occupied, or enjoyed with " the property conveyed. I think that with these words to rely on, we may safely allow general words to disappear altogether from our conveyances.
You have another objection to the words "at the time of conveyance" in section 6. "What are we to say," you ask at p. 923, "about appurtenants or reputed appurtenants, which admit of being altered, released, extinguished, or interrupted, between the time of making the contract and the time of making the conveyance P does it not seem that these would pass, if at all, not as they existed at the former time, but as they existed at the latter time?"
Undoubtedly; but the purchaser will see, as you say he does under the present practice, "that the conveyance expressly [or impliedly] includes all that he bargains for at the time of tho contract." If any appurtenants for which he bargained are released between contract and conveyance, he will have exactly the same remedies as those which he now enjoys. The words which you disparage only mean that the conveyance shall not operate to pass what the grantor no longer possesses.
Lincoln's-inu, November 1. O. C.
[As to the first part of our correspondent's remarks, we have nothing to say against his "true view"; but we cannot see how it conflicts with the passage which he cites from our article. What in subsection (3) can be the meaning of "the mortgages," except "the mortgages which the mortgagor seeks to redeem, and whioh, if an action is brought, are the subject of the redemption action?" Suppose a mortgagee to be entitled to the benefit of a number of mortgages (call them the old mortgages) all made by the same mortgagor before the commencement of the Act; and afterwards to get into his 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 his right to consolidate even the old mortgages. We do not mean that none of them will in fact ever be redeemed simultaneously; because it
might be to the interest of the mortgagor so to redeem some of them; but that the mortgagor will be able, by picking out those which he desires to redeem, and including among them the new mortgage, to prevent the mortgagor from consolidating the rest of the old mortgages. For by hypothesis one of the mortgages which he seeks to redeem is "made after the commencement of the Act."
With regard to guasi-appurtenants, our correspondent, in the earlier part of his remarks, seems not to have clearly remembered that our 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 oldfashioned practice of inserting such words as "at any time heretofore," was proper to secure the re-grant of extinguished easements. This practice fell much into desuetude; but we see little objection to supplying the words by implication where they are not expressly excluded. Our contention was that they and their meaning are expressly excluded by the words of the section " at the time of conveyance."
As to the latter part of our correspondent's remarks on this subject, he will hardly contend that a purchaser with an implied grant such as is clearly given, according to his own showing, by the present practice, would not be in a better position than a purchaser with a statutory conveyance, which according to our view, would contain no grant at all. In this case even our correspondent seems to admit that the statutory conveyance will need to be supplemented by the insertion of an express grant. And he seems to forget that our remark was made subject to the hypothesis that purchases by open contract (which could not provide expressly for anything) should become a commou practice.
We must add that, although we have printed our correspondent's letter (as we have noticed every letter yet received upon this subject), we must decline in future to insert letters upon articles which appeared too long ago for the context to be in the minds of our readers.—Ed. S. J.]
CASES Of The Week.
Application To Advance Appeal—Notice.—la the case of In re A Solicitor, before the Court of Appeal (Jessel, M.R., and Baggallay, Brett, and Lindley, L. JJ.) on the 2nd iost., an ex parte application was made to advance the hearing of an appeal relating to the taxation of costs. Jessel, M. K., said it was not regular to make each an application ex parte; it ought to be made upon notics.—Solicitor, W. H. Jackion.
Administration Action—Conduct Op Proceedings—Receiver—Actions In Different Branches Of Court.—In a case of Dowd v. Eawlin, before the Court of Appeal on the 2nd inst., a question arose as to tho conduct of tho proceedings in an administration action. An action for the administration of the personal estate of an intestate was commenced in the court of Bacon, V.C., against the administrator, the plaintiffs being next of kin of the intestate, and. an administration judgment was obtained. The administrator afterwards brought an action in the court of Hall, V.C., to administer the estate of another person to a share of whose estate the intestate was entitled, and in this second action a judgment for administration was obtained. Afterwards the administrator (the defendant in the first and the plaintiff in tbe second action) became a bankrupt. The plaintiff in the first action then applied to Bacon, Y.C., for the appointment ol a receiver of the intestate's estate, and for an order giving the conduct of the proceedings in the second action to the plaintiff in the first. Bacon, V.C., appointed a reoeiver, but refused the rest of the application. Tho plaintiff appealed from the refusal, and on behalf of the respondent (the administrator) it was urged that the ordinary praotice of theoourt in suohaoas* was to give the oonduot of the second aotioD, not to the plaintiff in the first, bat to the reoeiver, and also that the applioation to change the oonduot ol the proceedings in the second action ought to have been made, not to Baooo, V.C., but to Hall, V.C., in whose court the judgment in that action had been obtained. The Court of Appeal (jessel, M.R., and Baqgallay, Brett, and Lindley, L.JJ.) held that the applioation had been made in the proper court, and that the seoond part of it ought to have been granted as well as the first. Jessel, M.E., said that the praotioe now is different from what it was in the time of Lord fildon; tbe conduot of an aotion is never now given to a reoeiver. In the present case, the administrator having become a bankrupt, he was not a fit person to be a trustee or to oonduot tbe second aotion, and the applioation to take the conduct away from him ought to have beeu granted as a matter of conrse. No opposition oould have been raised to it by the bankrupt, who had no interest in the matter. The only person who had any interest in opposing the applioation was the solicitor of tbe administrator, by reason of his interest in the costs. The opposition had been improperly raised, and the respondent must pay the oosts of the appeal. Brett, L.J., said he thought the applioation had been made in the proper court. LindLey, L.J., said that it oould not be right that the bankrupt administrator should continue to have the oonduot of the seoond aotion: the conduot ought to be given either to the plaintiff in the first aotion or to the reoeiver, and it waB a mere matter of practioe to whioh of them it should be given. Solicitors, H. W. Chatterton; Ji. M. # F. Lowe.
Mr. Justice North sat in Dane on Wednesday, when there was a large attendance of the equity bar to weloome the newly-appointed judge. COUNTY COURTS.
Abe BYST WITH.
(Before Homebsham Cox, Esq., Judge.)
His Honour.—The plaintiffs iu this case are a registered joint stock company, established in 1853, for the mutual insurance by the members of the society of ships belonging to the port of Aberystwith. Tho business was carried on under the rules contained in a deed of settlement dated the 30th of December, 1853. One of those rules, rule 53, authorized the directors "from time to time to make calls or demands of money upon the members in proportion to the amount of the respective sums for the time being insured." Another rule, rule 45, provided that no person shonld become a member nntil he executed the deed of settlement or some deed of accession thereto.
On the 1st of January, 1879, the defendant Eliza Davies, being the ship's husband of the ship Sarah Davies, paid to the society a deposit of £12 12s. for the purpose of insuring the sum of £840 in respect of the ship, and took a receipt from the society for that deposit. But Eliza Davies never executed the deed of settlement or any deed in accession thereto.
In December, 1879, the directors made a call of £1 2s. 6d. in the pound deposit, and they now sue the defendant Eliza Davies on that call. On her behalf it is contended (among other things) that she is not liable as she is not a member of the society, because rule 45 has not been complied with.
In several material respects the facts of the present case are similar to those of the case of Edwards v. Aberayron Mutual Ship Insurance Society (L. E. 1 Q. B. D. 563). That case was heard in the Queen's Bench Division and subsequently, by way of appeal, in the Exchequer Chamber.
The plaintiff songbt to recover a sum of money in respect of the total loss of a vessel. For the present purpose it is sufficient to quote the following passage from the judgment of Mr. Justice Blackburn, premising that the plaintiff was the equitable owner and one Davies the registered owner of the Tessel:—"Davies acting as ship's husband first insured The Hcrmione for £1,000. The defendants accepted the insurance and received the premium; one or two years went by during whioh the defendants made calls npon the plaintiff as owner of The Hermione and a member of the society. But when the ship is lost the defendants refase to pay the insurance, and it is contended that the plaintiff, who caused his interest in the ship to be insured, cannot recover for the loss as a member of the defendants' society, on the ground that he never in fact signed a copy of the article*. The answer is obvious: that as the directors chose to accept an insurance on The Uermione, and thereby m»de the owner a member of the society and treated him as such, and made ealls on him as such, they are precluded from saying that he is not a member of the society."
The decision of the Queen's Bench was to this effect, and was upheld on this point in the Court of Appeal; though the decision of the Queen's Bench on a different point was reversed.
It appears to me that the present case is analogons. It is true that the position of the parties is reversed: that the insurance society are the plaintiffs and the owner is the defendant. But the principle involved is the same as in the case cited. The defendsnt having paid premiums on a policy cannot be heard to say that she is not a member of the society. If the vessel had been lost during the period covered by the policy, she could have sued successfully for the sum for which she was insured. There would be a want of mutuality if the one party to the contract were liable to fulfil it and not the other. I am clearly of opinion that, though the defendant did not sign the document mentioned in rule 45 of the sooiety's rules, she is liable on the contract.
Then it was urged that, as the vessel was not classed, she was not a proper •object for insurance. But the defendant cannot take advantage of her own wrong; having chosen to insure the vessel she cannot turn round and say she was not fit to be insured.
I am of opinion that the policy, notwithstanding technical informalities, was valid, and, therefore, the judgment will be for the plaintiff, with costs.
MR. WILLIAM SMITH. Mr. William Smith, solicitor, of Winchooinb, died on the 20th ult. Mr. Smith was born in 1811, and was admitted a solicitor in 1838. He had a good local practice, and he bad been for many years under-bailiff for the borough of Wincbcomb. He had also been for a short time registrar of the Winohcomb County Conrt (Circuit No. 53). Mr. Smith had taken an active part in all local business, and he was for several years a member of the Winchcomb Board of Guardians, and also of the Burial Board, and Highway Board. The Winchcomb Infant School was built at his exclusive cost. At the sitting of the Winchcomb County Court on the 26th ult., the judge (Mr. Sumner) expressed his sorrow at Mr. Smith's death, and his sense of the ability with which the deceased had performed his duties as registrar of the court.
MR. WILLIAM GREENE ATKINSON. Mr. William Greene Atkinson, barrister, librarian of the Patent Office Library, died at his residence, 59, Eowan-road, Hammersmith, on September IS. Mr. Atkinson was born in 1810, and was called to the bar at the Middle Temple, in Michaelmas Term, 1841. In 1854 he was appointed librarian of the library at the Great Seal Patent Office, and held that office until his death. Mr. Atkinson was most indefatigable in the discharge of his official duties, and his services were highly valued by the Commissioners of Trade-Marks. He had prepared, with great labour, the manuscript catalogue of the library, and he was editor of the " Commissioners of Patents' Journal."
THE JUDGES ON ASSIZE REFORM.
At the Cambridge Winter Assizes the Lord Chief Justioe, in the course of his oharge to the grand jury, congratulated them npon the small amount of crime with whioh they were oalled npon to deal. There were only two prisoners, one of whom was from eaoh county. This was exactly the same number of prisoners they had at Norwich. The question of the necessity of suoh frequent holding of assizes had been raised, and, of oonrse, in a perfeot state of the law a person charged with an offence ought to be tried directly the prosecution was ready and the prisoner prepared with his defence. That, however, could not be done without a great increase in the oost of the administration of the law, and there were other considerations whioh could not be disregarded. There were twenty-three gentlemen of the grand jury, and sixty summoned on the common jury, and altogether about one hundred persons were brought away from their ordinary avocations at considerable inconvenience to try these two criminals. This was manifestly a question to be considered, but it was not for him to suggest a remedy. It had been suggested, however, that the assizes should be held less frequently, and that the power of admitting prisoners to bail should be extended. It was now exeroised to a greater extent than it was in former times when he was a young man, and he believed from what he had heard, and from experience, that prisoners very rarely failed to surrender to take their trial whec admitted to bail. However, they bad better means of knowing whether this was so than he had, and he would not express an opinion whether the extension of bail to nearly all charges would meet the case. The grand jury having completed their labours, the foreman, Mr. E. Hiokp, M.P-, said he had been requested on behalf of the grand jnry to say that they folly concurred with his lordship's remarks as to the holding of four assizes in each year. They considered that the present arrangement was a great waste of judicial power, and imposed unnecessary burdens on all persons connected with the administration of justice in the county. They would be very glad if, by his lordship's influence and representation, the present state of things could be altered. The Lord Chief Justice said he would take oare to communicate the opinion of the grand jury to the Home Secretary, who was the only person with whom he could oommnnioate on the subject. He must, however, remark that the true way to alter the present state of things was by the influence of Parliament. The House of Commons was the party to influence, and if they could be brought to agree to an alteration he should be glad.
In charging the grand jury at Exeter on Monday Mr. Justioe Watkin Williams made some observations upon a matter that was attracting a great deal of attention, both from grand jurymen and judges, with regard to the frequency of holding these assizes. We have (he said) assizes and gaol deliveries held four times a year. In my humble opinion it would be perfectly impossible to recede from a quarterly gaol delivery, for I think It is the feeling and opinion of everybody tuat if persons are charged with offences — many of them possibly innocent, or if not innooent, persons who would not be convioted—it is almost barbarous that they should be kept in prison without undergoing trial perhaps five or six months. It is a very serious question whether there is not some new course of bringing together the machinery of quarter sessions and assizes. Yon have perhaps a quarter session one week, and a week or a fortnight afterwards you have a similar machinery brought together to try what, with very few exceptions, are a very similar class of prisoners. That does strike one as an absurdity. I venture to suggest for your consideration whether it would not be possible to unite or associate together the quarter sessions and the assize. For my own part, I sec no practical difficulty in it at all. But there may be practical difficulties, and that is why I call the attention of gentlemen of your 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 present themselves may be met and overcome. My impression is that 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 looal authorities to have the assistance of a judge from the High Court of Justice they can demand it, if not they need not do so. There would be thus no donble machinery at work, and the inconvenience of bringing gentlemen together so frequently would be avoided; while, as it seems to me, increased efficiency will result. My impression is that it would be of very great advantage to the judges as well as to the local magistrates that they should be associated together in the administration of the law of the country. It would be a mutual advantage, as it seems to me, and of no inconvenience that I am at present acquainted with—at least, no inconvenience that might not be satisfactorily dealt with. There is one other thing I desire to mention, because it has been much commented upon, that is, the waste of time arising from the 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 obtained, I allowed a woek for the Bristol Assizes, but the business took only two days to transact. Those who are acquainted with the details of assize arrangements 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 who have to be notified and the number of officials who are brought together; and when we have to fix the time beforehand we are in this difficulty, that we must make allowance for uases that may possibly come in during the interval. In doing that you may allow too long a time, while, on the other hand, great inconvenieuce sometimes arises from too short a time being allowed. In my own personal experience this happened last week. At Chester a week had been allowed for the assize, but in consequence of two very long cases—one a murder, the other a burglary—the time was not sufficient. There is consequently great practical difficulty iu the