COURT OF COMMON PLEAS. WELLER. THE LONDON BRIGHTON, AND SOUTH COAST RAILWAY COMPANYNegligence-Railway company-Invita tion to alight 888 291 291 202 293 294 294 CORRESPONDENCE OF THE PROFESSION... 295 298 298 PROMOTIONS AND APPOINTMENTS............ 298 The Law and the Lawyers. ANY evidence concerning the probable working of district registries is of interest, and we notice in a pamphlet entitled "A Plea for the entire suppression of Patronage" it is stated that "The district registries of the Probate Court cost annually, in salaries, about £41,000, and issue about 18,000 probates, and between 6000 and 7000 administrations. The principal registry costs annually, in salaries, about £41,000, and issues about 10,000 probates, and rather over 5000 administrations." The author adds, "If it can be shown that every grant issued in the country entails a large VOL. LVI.-No. 1612. amount of work in London, then we have an additional argument in favour of the abolition of district registries, and the personnel of the London Probate Registry would in the future bear a still greater reduction." Ir is considered certain that the new Government will ask the House of Commons to postpone the operation of the Judicature Act. We hear also that an effort will be made to restore the jurisdiction of the House of Lords. We understand that a special return to the writ has been made by the returning officer for Hackney, acting under the advice of counsel, but, nevertheless, a petition has been filed impugning the return. The better opinion is that Parliament has not parted with all its jurisdiction over the election of its members, and that on the special return being made a new writ may be ordered to issue without the formality of a petition being filed in the Court of Common Pleas for the purpose of obtaining a judicial decision that the election was void. Under present circumstances, however, Parliament will probably leave the matter in the hands of the election petition tribunal. WE are glad to see that so high an authority as Mr. McIVER has drawn attention to the extremely unsatisfactory nature of the tribunals which are at present entrusted with inquiries into maritime disasters. In a memorandum recently issued he says: "That the system of courts of inquiry into maritime disasters is so bad that hardly any change could be made for the worse; and therefore that it is high time the question were entrusted to competent legal authority with a view to practical suggestions for improving the mode of procedure in such manner as would be likely to best elicit information, while giving shipmasters reasonable opportunities for defence-which at present is not always the There are many instances where substantial injustice has been done to unfortunate shipmasters; and also where the owner has been prejudiced in a court of law by the allegation that his master had been adjudged in default-and that, perhaps, by a tribunal not very competent." We recently pointed out that before these Marine Courts of Inquiry the captain and crew of a ship in collision are not entitled to be professionally represented, and the Board of Trade is really dominus litis, and controls the proceedings in a way which, as Mr. McIVER says, is apt to be most prejudicial to cwners. We thoroughly agree that the ordinary legal tribunals of the country should alone have cognizance of these inquiries. case. AN important and interesting paper on some statistics of the courts of justice and of legal procedure in England, was read before the Statistical Society, on Tuesday evening last, by Mr. F. H. JANSON, President of the Incorporated Law Society. It is principally interesting as bearing upon the probable operation of the rules to be framed under the Judicature Act. Mr. JANSON appears to anticipate that these rules when framed will present difficulties of construction and application which will for some time prevent any great increase in the dispatch of business. He mentions, on the authority of one of the Judges of the Court of Queen's Bench, that the Rules of the Common Law Courts published in 1832, with a view to simplify the system of pleading, and thus to shorten proceedings, rendered it far more technical than before, and it was not until the passing of the Common Law Procedure Act in 1852, that an effectual remedy was applied. We shall have to grapple with a new body of rules evolved from the intelligence of three gentlemen, all of whom are barristers of varied but not large practical experience, and we fear that there is too much reason to expect that there will be a great deal of trouble before the Act works properly. Another important subject dealt with by Mr. JANSON is the judicial power available for the dispatch of the business of the courts. He at once declares that our present staff is not strong enough, and he does not appear to think that the distribution of business under the Judicature Act will diminish the labour of individual Judges, and thus enable them to get through a larger amount of work in the aggregate. He points out that the equity Judges will have more work in taking evidence vivâ voce, whilst the MASTER of the ROLLS will have new duties as an ex officio member of the Court of Appeal. The remedy which Mr. JANSON proposes is that the chief clerks should have nothing to do but administrative business, and that the Judges should work out their own decrees in chambers-sitting in chambers three days a week. "From the limited number of the chief clerks," Mr. JANSON says, "and the multiplicity of matters referred to them, great delays are often experienced in obtaining appointments to proceed. .. . I recollect a case in which I was engaged, one in which expedition was important, where the Chief Clerk, eminent in his class for industry and capacity, was unable to give successive appointments at intervals of less than two months." Mr. JANSON next turned his attention to the proposed tribunals of commerce, or Courts of Conciliation. The experience of arbitration," he says, "is not favourable to the withdrawal of contentions proceedings from the legal tribunals," and he anticipates that even in the Referees' Courts, under the 66 Judicature Act, " from the courtesy which is always shown to the Bar, and by solicitors to each other, arrangements for meetings will be made to bend largely to suit the convenience of the practitioners, whenever the presiding functionary holds any position short of the dignity of a Judge.' Mr. JANSON'S conclusions on the question of delay is that it is owing first to the want of a sufficient judicial staff in the Court of Chancery, and secondly to the occurrence of vacations. He does not see that vacations will necessarily be abridged under the new Act. We agree with him that there ought to be no cessation of legal business throughout the year. It will be seen from the above that important as Mr. JANSON'S paper is for the purpose of enforcing the lessons of practical experience, he states nothing new-for the simple reason that nothing new is to be said. The arrears in our courts are a scandal to the country. No one anticipates that they will be swept away by the new Act, and we trust that the more generous Government which has now entered upon office will see the wisdom of augumenting the judicial strength of the courts, so that the 'law's delay may cease to be a proverb. A VERY singular case was heard at Nisi Prius recently in Philadelphia. The headnote of the report appearing in the Legal Intelligencer is this: (1) "A civil action for damages can be maintained against an infant himself for injuries done by him while under the age of seven years. (2) Whether a woman undertaking to perform the duties of a nurse assumes the risk of being injured by the follies of a child, not decided." The defendant, it seems, at the dangerous age of six, assaulted his nurse and knocked an eye out, and she sought to recover from him damages for the injury. So very soberly and very elaborately did "SHARSWOOD, J.," charge the jury, telling them that although a child of such tender years could not have the malus animus to render him liable to criminal proceedings, he was not on that ground exempt from liability in a civil action, "though," said the learned Judge, "of course it enters very materally into the question of the amount of damages to be recovered in the case." An important point raised was whether it must not be an unavoidable conclusion that damage inflicted by a child of six is an inevitable accident. The court thought that it was a question for the jury. "Where," said SHARSWood, J., "infants are the actors, that may probably be considered, however, an unavoidable accident, which would not be so considered where the actors are adults; but such a distinction, if it exists at all, does not apply to this case; for if the evidence of the plaintiff be believed, here was a blow voluntarily inflicted by the defendant, and not an accident resulting from mere negligence, which might not be imputable to so young an infant. If this had been an injury arising from negligence, I suppose the law to be very clear that no negligence could be imputed to so young an infant; but this blow, if the testimony of the plaintiff is to be believed, was voluntarily given, and was not the result of negligence, although it may have been and was the mere act of a foolish child, the thoughtless act of a foolish child, ignorant of the consequences." The main question for the jury was, therefore, whether this pugnacious infant struck the blow. A second legal question was, as we have stated, whether the employment was not undertaken with all its risks. Upon this the learned Judge said that there were some analogies in the law which would bear out such a contention, but being unable to find that the question had ever been expressly decided, he expressed his intention to reserve it. We are not furnished with the finding of the jury, and without expressing any opinion upon the merits, we quite agree with the learned Judge that the case is novel and interesting. 66 Apropos of the strenuous exertions about to be made by the railway interest to obtain the abolition of the passenger duty, it will be well to trace the progress of the duty through the various statutes which affected it. One halfpenny per mile for every four passengers was the first tax levied. This was in 1832, by 2 & 3 Will. 4, c. 120, which may be said to have consolidated the taxes on locomotion (payable in respect of coaches and post horses long before that period), and which imposed a mileage as well as a licence duty upon "stage carriages." The present duty of five per cent. "upon all sums received" for the conveyance of railway passengers was created in 1842 by 5 & 6 Vict. c. 79, which at the same time much reduced and simplified the duties on stage carriages. In 1844, by 7 & 8 Vict. c. 85, s. 9, the duty was taken off in respect of passengers conveyed "at fares not exceeding one penny for each mile by any such cheap train" as that mentined in sect. 6 of the same Act-i.e., a train travelling not less than twelve miles an hour, and taking up and setting down, if required, at every passenger station on the line. The companies claiming exemption under this Act for excursion trains, the exemption was confined in 1863, by 26 & 27 Vict. c. 33, s. 14, to trains running six days a week. From that time to this the railway passenger duty has remained untouched, whereas the duty on stage carriages, reduced in 1855 by 18 & 19 Vict. c. 78, was finally and entirely abolished in 1869, by 32 & 33 Vict. c. 14. Hinc illo lacrymæ. The London and North-Western Railway Company, which figures for the large sum of £41,428 7s. 6d. paid for "Government duty" in the past half year, requests "the active co-operation of proprietors in impressing upon members of Parliament the injustice of continuing to levy this tax, from which all other carriers are free, upon railway companies." We should imagine that the duty on stage carriages was taken off somewhat for the same reason as that which extinguished the duty on hair powder-because they were so rapidly becoming obsolete as to render the duty no longer worth the trouble of collection. It is because the railway companies are monopolists that so large and exceptional a duty as the passenger duty is in any way justifiable. However, there is, we believe, good authority for saying that all taxes on locomotion are bad, and we think a mileage tax would be better than a percentage on passenger receipts, which presses unequally on different companies, and leads to disputes with the Inland Revenue in respect of third class traffic. A POINT of bankruptcy law of some importance was before Mr. STONOR, County Court Judge at Wandsworth, on the 12th inst. The debtor, an infant, had been sued in the Superior Court for false imprisonment, and a verdict for more than £300 was recovered. Upon this judgment debt a petition in bankruptcy was presented in the Wandsworth County Court, and the learned Judge adjourned the hearing in order to ascertain whether the debtor had appeared in the action by his next friend, expressing his determination, if the debtor did so appear, to make the adjudication. This raises the question of the liability of an infant to be made a bankrupt. The learned County Court Judge rested his judgment upon Re Smedley (10 L. T. Rep. N. S. 432), and Re Purser (19 L. T. Rep. N. S. 23). In Smedley's case the petition was by a debtor in gaol for adjudication against himself, and Mr. Serjt. WHEELER held that an infant was within the operation of the Act of 1861. Purser's case also was an adjudication on a debtor's own petition, and Mr. Commissioner WINSLOW relied upon the words of the 86th section of the Act 1861-" Any debtor may petition for adjudication against himself "-as being sufficiently general to include an infant. But a debtor adjudicating himself a bankrupt and being adjudicated a bankrupt on the petition of a creditor are surely two different things. Under the present law a debtor cannot make himself a bankrupt. He may, however, file a petition for liquidation; and we apprehend there can be no doubt that an infant could resort to this process. But can an infant be made a bankrupt? In Maclean v. Dummet (22 L. T. Rep. N. S. 710) it was held by the Judicial Committee of the Privy Council, after an argument in which Re Smedley was cited, that an infart could not be adjudicated insolvent. In argument in Maclean v. Dummet the present LORD CHANCELLOR said, "That an infant cannot be made a bankrupt has been well settled since Lord HARDWICKE's time. (See Ex parte Henderson, 4 Ves. 163.) . . . . And it is clear that a commission of bank. ruptcy against an infant is void, and not voidable merely." The cases cited on the other side were thus dealt with by the Judicial Committee: "These cases proceed on this, that the infant has fraudulently asserted himself to be of age when he was not of age, and that he has, by that fraudulent assertion induced persons to give him credit, and thereby has contracted debts in the trade." The adjudication of insolvency was set aside and annulled with costs. Mr. STONOR has decided that he could adjudicate an infant bankrupt on a creditor's petition upon the authority of two cases which decided that an infant could make himself a bankrupt. They, therefore, only go half way in supporting him in his conclusion, which is met directly by Maclean v. Dummett. soundness of his decision must therefore be doubted if not positively disputed. The THAT it is not an universal rule that the mens rea is essential to an offence under a penal enactment has been well exemplified by the recent case of Mullins (app.) v. Collins (resp.) (29 T. T. Rep. N. S. 839). By sect. 16 of the Licensing Act "if any licensed person (1) knowingly harbours or knowingly suffers to remain on his premises any constable. .. or (2) supplies any liquor to any constable on duty," he is liable to a certain penalty. A barmaid of the defendant had supplied liquor to a constable in uniform without the knowledge of the defendant, and the simple point was whether the defendant, contrary to the usual rule, was to be held criminally responsible for the act of his servant. The Court of Queen's Bench has pronounced against the "licensed person," partly because public-house business being carried on so much by the aid of servants, a contrary decision would have rendered the clause practically inoperative, and partly because the word "knowingly," repeated twice in the first sub-section, is omitted in the second. Inference from the actual language used in a statute may often justify a departure from the ordinary rules of construction, but it is not quite easy to see where exceptions determined by a reference to the subject matter are to stop short of making instead of declaring the law. And the argument from the omission of "knowingly" might, perhaps, be met by a reference to sect. 35, which imposes a penalty on every person who by himself, or by any person in his employ, or acting by his direc tion or with his consent," refuses to admit a constable demanding entrance; a probable inference being, that the Legislature 66 had before it the question of the criminal responsibility of the master for the servant, and knew how to make provision for it when necessary. We will not, however, go so far as to question the correctness of the decision in Mullins v. Collins, though it would, perhaps, have been more satisfactory if the point had been raised before the Court of Common Pleas, which in the late case of Dickinson v. Fletcher (43 L. J. 25, M. C.) is reported to have laid down that " a mens rea is essential to an offence under a penal enactment, unless a contrary intention appears by express language or necessary inference." We notice that two subsidiary points were raised but not determined in the case. One was, whether it would have been a good defence for the master to prove that he had given an express order to his servant not to admit the constable. We should imagine that Limpus v. The London General Omnibus Company (32 L. J. 34, Ex.) is an authority in point against the master, for in this particular we can see no difference between a civil and a criminal case. The order would have been merely the presumable one to obey the law, and if the master be liable at all, he is liable whether he may have given such an order or not. On the other question, whether the master would have been liable if he could prove that the servant had been tricked into admitting a constable when he had every reason to believe that he was admitting a private person, we can only say that however it might be decided by the court which heard Roberts v. Humphreys (L. Rep. 8 Q. B. 483; 29 L. T. Rep. N. S. 387) it would in all probability be decided in favour of the master by the court which heard Dickinson v. Fletcher. Upon the general question we would remark in conclusion that in Reg. v. Stephens (L. Rep. 1 Q. B. 702; 16 L. T. Rep. N. S. 593) BLACKBURN, J., expressly guarded himself "against it being supposed that the general rule that a principal is not criminally answerable for the act of his agent is infringed," and that it would seem to be highly desirable that the rule when reversed by statute should be reversed in express words. LIABILITY UNDER THE MINES REGULATION ACT 1872. THE case of Dickenson v. Fletcher (29 L. T. Rep. N. S. 540), is an important case as throwing light upon the penal liability of the owners, agents, and managers of coal and metalliferous mines, under the Mines Regulation Acts, 1872. The colliery offence in that case arose through the non-compliance with one of the rules laid down by the Regulation and Inspection of Mines Act, 1860 (23 & 24 Vict. c. 151), an Act which is repealed, so far as the sections in question go, by the Coal Mines Regulation Act, 1872. By the 10th section of the above Act it was provided that certain general rules should be observed in every coal mine by the owner and agent thereof; and among those rules was one providing that, whenever safety lamps were required to be used, they should be first examined and safely locked by a person or persons duly authorised for that purpose. The 22nd section provided that" if through the default of the owner or agent thereof,' any of such rules, the provisions of which ought to be observed by the owner and principal agent, or viewer of such mine, be neglected or wilfully violated by any such owner, agent, or viewer, such person shall be liable to a certain penalty. In the case of Dickenson v. Fletcher, the owner of a mine appointed a competent person to examine and lock the safety lamps required for use in the mine, but such person delivered out certain safety lamps to miners for use in the mine unlocked. The question before the court, therefore, was whether the owner was liable to a penalty in respect of the neglect or default of the person whom he appointed, and was entitled to appoint, no accident having occurred. It was contended for the appellants that if, in fact, the lamp was not locked in pursuance of the rule, the owner was liable in virtue of that mere fact, and that it was quite immaterial whether he knew of it, and what amount of precaution he took to prevent it. The general principle that penal consequences only follow a personal act of omission, neglect, or default, was not disputed; but it was contended that the enactment in question carried the case out of the general principle. The court held, not however without considerable doubt on the part of Mr. Justice Brett, that in the absence of any personal default on the part of the owner, he was not liable to a penalty in respect of the act of the person so employed by him. Thus it is seen that, under the Act of 1860, it was necessary for the prosecution to prove some personal default on the part of the owner, agent, or manager of a mine. This is all changed under the new Acts, which, primâ facie, make the owner, agent, and manager liable for any contravention or non-compliance of their provisions, and throw upon them the burden of proving that they personally have taken all reasonable means of publishing and enforcing its provisions. Thus it is provided by the 15th section of the Coal Mines Regulation Act, 1872, that If any person contravenes or fails to comply with, or permits any person to contravene or fail to comply with, any provision of this Act with respect to the employment of women, girls, &c. he shall be guilty of an offence against this Act; and in case of such contravention or non-compliance by any person whatsoever, the owner, agent, and manager shall each be guilty of an offence against this Act, unless he prove that he had taken all reasonable means by publishing, and to the best of his power enforcing the provisions of this Act to prevent such contravention or non-compliance." A strange distinction is made between this and the corresponding section of the Metalliferous Mines Regulation Act, 1872, the reason of which is not very obvious. The words of the two sections are exactly the same, with the exception that the words printed above in italics in sect. 15 are omitted in sect. 8 of the Metalliferous Mines Regulation Act. After laying down general rules to be observed in mines, it is enacted that “ Every person who contravenes or does not comply with any of the general rules in this section shall be guilty of an offence against this Act; and in the event of any contravention of or noncompliance with any of the said general rules in the case of any mine to which this Act applies, by any person whomsoever, being proved, the owner, agent, and manager shall each be guilty of an offence against this Act, unless he proves that he had taken all reasonable means, by publishing and to the best of his power enforcing the said rules as regulations for the working of the mine, to prevent such contravention or non-compliance." And as to special rules to be observed in particular mines it is provided by the 52nd section that, "If any person who is bound to observe the special rules established for any mine acts in contravention of or fails to comply with any of such special rules, he shall be guilty of an offence against this Act, and also the owner, agent, and manager of such mine, unless he proves that he had taken all reasonable means, by publishing and to the best of his power enforcing the said rules as regulations for the working of the mine, so as to prevent such contravention or non-compliance, shall each be guilty of an offence against this Act." Similar sections also occur in the Metalliferous Mines Regulation Act. From a consideration of these sections it appears that the penal liability of the owners, agents, and managers of mines, practically remains where it was before the passing of the recent Acts, with this exception, that the burden of proof will shift from the shoulders of the prosecutor to those of the prosecuted. A personal omission, neglect, or default on his part will be assumed in the first place, and will have to be rebutted by him. is The real question to be decided is what are to be considered all reasonable means " of enforcing the provisions of these Acts. This is a question yet to be decided, and Judges will do well, in our opinion, to demand something more than general rebutting evidence on the part of mine owners. If proof of the hanging up in mines of the general and special rules, and of the appointment of agents or managers of ordinary ability and care, is held to be sufficient to relieve mine owners of penal liability, these sections will have done but little towards the protection of the lives of our miners, and the law upon this subject will remain very much as it was before the passing of these Acts, and as it is laid down in Dickenson v. Fletcher. INDORSEMENTS OF SALES, &c., UPON DEEDS. IN October last a discussion took place in our "Notes and Queries upon Points of Practice" column, as to the right of a purchaser of a portion of an estate to insist upon a memorandum of his conveyance being indorsed upon the principal title deeds retained by the vendor. We do not think that a purchaser can insist upon such an indorsement, nor does it appear to us that if he could it would in any manner improve his title. Of course the purchaser must ascertain that the vendor has a right to sell the property, and that the legal estate can be conveyed to him, but if he get a conveyance of the legal estate his title must prevail against that of any person to whom the vendor might subsequently attempt to sell or mortgage the property. A person who purchases under a condition that the vendor shall retain the deeds in consequence of their relating to his unsold property, cannot be considered guilty of gross negligence in leaving the deeds in the vendor's hands, and consequently such person's legal title must prevail. There are very few properties which can be sold a second time, if we may be allowed to use such an expression, for in most districts the ownership of property is pretty generally known, or can be easily ascertained by inquiry. There are, however, some kinds of property as to which the ownership is not so well known, as, for instance, unripe and unoccupied building land near large towns, and barren land, purchased for the sake of the minerals under it. The writer has himself recently met with a case in which a piece of unoccupied land was conveyed to a person who afterwards conveyed away a small portion of it, and, subsequently, by mistake, sold and conveyed the whole piece to a third person. The fact of the previous conveyance was not discovered for some time, but when it was the matter was fortunately amicably arranged. Such a mistake, which might have been attended with much litigation and serious loss, could have been prevented, had it been incumbent on the first purchaser to have indorsed a memorandum of his conveyance upon the vendor's leading title deeds. The assignment of a chose in action is incomplete until notico has been given to the debtor or holder of the fund an interest in which is dealt with. If trustees were careful to annex to the settlement or other trust instrument any notices which might be given to them, or if they never retired nor died, and never forgot the fact of notice having been given to them, the present system might be considered to answer pretty well; but as trustees are but of human material, it often happens that a notice is forgotten or mislaid. In the recent cases of Phipps v. Lovegrove and Prosser v. Phipps (L. Rep. 16 Eq. 80) it appeared that the beneficiaries had mortgaged their interests in a sum of stock due notice whereof was given to the trustees. In course of time, however, the trustees died, and new trustees were appointed who knew nothing of the mortgage or notice, and not being aware that any dealing had taken place, the new trustees sold out part of the stock, and paid the proceeds to the beneficiaries. The mortgagees filed a bill against the trustees to compel them to refund the money, and in giving his judgment James, L.J. who was then sitting for the late Vice-Chancellor Wickens, said (p. 89), "I am of opinion that the charge against the trustees must fail. It is one of the infirmities which always attach to securities of this kind. It was pressed upon me that if I held this I should be destroying entirely these assignments of equitable interests, that it would be making them wholly valueless if they are liable to be destroyed in this way. Even if that should be the result, still it appears to me it would be far more injurious to hold that trustees could not deal in this way by consent of the only cestui que trust of whom they had notice. But the result which has been represented as so alarming does not follow; because, after all, the trustees of the deed of 1843 (the mortgagees) might have saved themselves all this risk, and all this loss, by the simple process of putting a distringas on the funds; or they might have had an indorsement of their security upon the deed of 1834 (the original settlement), or they might have resorted to the course of filing a bill for the execution of the trusts, and bringing the trusts into court. Therefore, if either of these precautions had been taken the loss could not have happened, and in like cases lenders may have recourse to any of these precautions, if they wish to prevent that happening which of course they are liable to, from the fact that trust funds are liable to changes of trustees, and non-transmission of notice given to one set of trustees to the succeeding set of trustees." The third suggestion is one which, on account of the attendant expenses, a client would, in the very great majority of cases, neither wish for nor allow, and may therefore be fairly dismissed from consideration. The first and second suggestions are more practicable, but so far as regards the first suggestion, a distringas is not infallible, for the trustees may, in the exercise of their powers, sell out the stock and invest the proceeds upon mortgage; and so far as regards the second suggestion it may be impracticable on account of the funds being held by the trustees of a will who are not also the executors, and therefore have no document in their possession upon which notice could be endorsed. And in cases where trustees of a will, who were not also the executors, had lent the trust funds upon a mortgage security, a purchaser from a beneficiary could not avail himself of either suggestion. In the great majority of cases, however, the trustees have some document relating to the trust upon which an endorsement could be made. It is the duty of everyone not only to prevent fraud and mistakes, but to do all in his power to prevent the possibility of their happening. Some vendors and some trustees will not allow notices of conveyances and assignments to be endorsed upon the documents in their possession, with the possible result we have above shown. It seems to us that a system by which purchasers and mortgagees were obliged, in order to complete their title (with, of course, exceptions for proper exceptional cases), to endorse upon the leading documents retained by the vendor or trustee, a notice of the conveyance, assignment, or other dealing, and by which vendors and trustees were compelled to allow such endorsements, would prove of service to all persons-to the vendor and purchaser, because the former could; thus easily show that he had not previously dealt with the property, and to the purchaser, because he could thus ascertain whether the property purchased by him was the whole of that in respect of which the vendor retained the title deeds, and he could so avoid any possible risk to which he might be liable by allowing the deeds to remain in the vendor's possession after the latter's interest in them had ceased; to persons about to deal with the property, particularly equitable mortgagees, such as bankers, who would thus see at a glance of what their security consisted; to trustees, because their trust deeds and notices would thus be always together, and, as exemplified by the cases decided by the Lord Justice, to persons who, having obtained a proper charge or assignment, run the risk of losing their property through a change of trustees and loss of the notice; and, lastly, to solicitors, particularly those to "vagrant owners, who could then easily ascertain what dealings had taken place and what stipulations should be made in conditions of sale as to covenants for the production of the deeds. If some such system were law trustees might not be quite so shy as they now are in replying to inquiries by intending purchasers or mortgagees of equitable interests, and purchasers and mortgagees of reversionary interests would feel themselves placed in a better position than they are at present, for, by reason of forgetfulness or otherwise a trustee may now reply that there is no prior charge, upon which assurance the matter is completed, but upon the distribution it may turn out that the trustee was wrong. It is true in such a case that the trustee and his estate would be responsible for his misstatement, but by reason of his having been dead for years, or of his impecuniosity, or other reasons, the unfortunate purchaser or mortgagee may be practically without a remedy. Even if the purchaser or mortgagee have a remedy it is sometimes difficult to enforce. A trusteeship is an unthankful and unprofitable office, and every possible means should be adopted of freeing trustees from unnecessary exposure to risk. SEARCHES, INQUIRIES, AND NOTICES. BEFORE stating what particular searches, inquiries, and notices should be made and given with reference to each particular class of property, we must say a few words upon inquiries and notices generally. It is a general principle that a purchaser must use due diligence in his inquiries, and that when he has such knowledge as would lead an honest man to make further inquiry and neglects to do so, he will be bound by whatever he could reasonably have been expected to ascertain had such further inquiry been made. The doctrine under which the purchaser is bound is commonly known by the name of constructive notice, as to which Vice-Chancellor Wigram, in Jones v. Smith (11 L. J. Rep., N. S., 83 Eq.), stated that "the cases of constructive notice may be divided into two classes-first, those in which the party charged has had notice that the property in dispute is charged or incumbered in some way, and the court has fixed him with notice of the particular charge; the second class, those in which the court is satisfied from evidence that the party to be charged had dishonestly abstained from inquiry. The proposition of law upon which the former class proceeds is not that the party charged had notice of a fact which in truth related to the subject in dispute, but actual notice of something that would have led him to the fact. The proposition of law as to the second class is not that the party charged had abstained from inquiry incautiously, but for fraudu lent purposes." If a purchaser be aware that a tenant is in possession of the property he will be considered to take, subject to whatever rights and interests such tenant has-for instance, a right of purchasing the property-and both as regards the tenant himself (Daniels v. Davison, 16 Ves. 249), and also as regards the vendor, from whom he is not entitled to compensation: (James v. Lichfield, 21 L. T. Rep. N. S. 526; L. Rep. 9 Eq. 51). If a purchaser from a tenant in common of property used for the purposes of the partnership is aware of such user, he will be bound by any claim the other partner may have in respect of the partnership (Cavander v. Bulteel, 29 L. T. Rep. N. S. 710). A purchaser, without knowledge, however, will not be affected by the interest of any person other than the tenant in possession (Hanbury v. Lichfield, 3 L. J. Rep. N. S. 49, Ch.); but if he is aware that some person other than the vendor receives the rent he will take subject to such person's interest (Knight v. Bowyer, 26 L. J. Rep. N. S. 769, Ch.). A purchaser from a person who had previously made a post-nuptial and therefore presumptively voidable settlement, should inquire whether it was made in pursuance of an antenuptial agreement (Ferrars v. Cherry, 2 Vern. 384), unless the deed is expressly represented as not affecting the property (Jones v. Smith, ubi sup., and on appeal 12 L.J. Rep. N. S. 381, Eq.), a purchaser with notice of a deed is affected not only with notice of its contents, but also with notice of the contents of all the deeds referred to therein (Davies v. Thomas, 7 L. J. Rep. N. S. 21, Ex. Eq.), so that if such deed contained a reference to an agreement which contained a covenant by the vendor relating to the land, the purchaser would be bound to observe the covenant: (Whatman v. Gibson, 7 L. J. Rep. N. S. 160, Eq.) In Steadman v. Poole (16 L. J. Rep. N. S. 348), a married woman entitled to leaseholds for her separate use without power of anticipation, concurred with her husband in mortgaging them by way of demise to P., who subsequently underlet them to the other defendants, who had no other notice of the interest of the married woman than the circumstance that she was a demising party, and it was held that such circumstance was sufficient to put them upon inquiry as to her interest. A lessee who takes an underlease without making inquiry into his lessor's title will be restrained by the court from committing what would have been a breach of covenant by the original lessee: (Parker v. Whyte, 32 L. J. Rep. N. S. 520.) A purchaser or mortgagee should always be careful to obtain the title deeds relating to the property or ascertain that they are in proper cuotody, and that the holder has no claim against the property. If the deeds are not in the possession of the vendor or mortgagor, proper inquiry must be made for them, or the purchaser or mortgagee will be affected with constructive notice of any claim the holder of them may have against the property (Dryden v. Frost, 8 L. J. Rep. N. S. 235, Eq.), but if a bona fide inquiry has been made for the deeds and a reasonable excuse given for their non-delivery, a legal purchaser or mortgagee will not be postponed to the claim of a prior equitable mortgagee (Hewitt v. Loosemore, 21 L. J. Rep. N. S. 69, Eq.). If the purchaser or mortgagee leave the deeds, in the vendor or mortgagor's possession, the former may be liable to have his conveyance or security postponed to a subsequent charge or interest created by the latter, but it is necessary that in so leaving the deeds the purchaser or mortgagee should be guilty of gross negligence (Perry-Herrick v. Attwood, 27 L. J. Rep. N. S. 121, Eq.), but the fact of some of the deeds having been left in the hands of the vendor or mortgagor does not necessarily imply gross negligence on the part of the purchaser or mortgagor (Colyer v. Finch, 26 L. J. Rep. N. S. 65, H. L.). A great objection to the purchaser or mortgagee employing the same solicitor as the vendor or mortgagor is that thereby the purchaser or mortgagee is deemed to have constructive notice of whatever the solicitor knew in relation to the matter. In Espin v. Pemberton (28 L. J. Rep. N.S. 311, Eq.) Lord Chelmsford laid it down that if a person employs a solicitor who either knows or has intimated to him in the course of his employment a fact that is hostile to his interest, he is bound by it, whether the fact is communicated to or is concealed from him; where the mortgagor, however, is a solicitor, and the mortgagee has no other solicitor, it does not follow that the mortgagor is the solicitor to the mortgagee. A solicitor, however, who simply gets the deeds executed, is not the solicitor of the parties so as to bind them with constructive notice of a charge of which he is aware: (Wyllie v. Pollen, 32 L. J. Rep. N. S. 782, Eq.). (To be continued.) THE LAW OF ALLUVION IN ENGLAND AND IN INDIA. By LAWRENCE BIALE, Barrister-at-Law. THE law on the subject of alluvion is perhaps one of the most constant branches of the law which the courts of justice in India are called upon to apply, disputed claims to alluvial lands by rival landowners having property on the banks of the great navigable rivers of the country, forming a frequent subject of litigation in the courts. For this reason we propose to discuss the law of alluvion of India, taking into our consideration the law as it was applied: First, prior to Regulation XI of 1825; and, next, as it has been understood since the passing of that Regulation. We shall see when considering the cases decided both before and since the Regulation that the English law of alluvion, derived from the civil law, had been made part of the municipal law of India by the courts previous to the regulation and that the effect of the regulation was merely to embody the same as part of the positive written law of the country. The law of alluvion was thus in no way altered by the Act of 1825, but was only determined and recognised by a written enactment. Alluvion is defined to be the insensible increase of the earth, made to land by the force of the waters of the sea or a river by a current or by waves. The characteristic of alluvion is that it is imperceptible, so that no one can judge how much is added at each moment of time. In the Code Napoleon (sect. 556) the word is defined thus: "The accumulations and increments which form themselves successively and imperceptibly against the riparian lands of a river or stream, are called alluvion." It appears that the rule of the common law is the same as that of the civil law. The latter is thus translated: "That ground which a river has added to your estate by alluvion becomes your own by the law of nations; and that is said to be alluvion which is added so gradually that no one can judge how much is added in each moment:"(Just. Inst., lib. 2, tit. 1, sect. 20). Fleta writes: "We acquire a right to things according to the law of nations by acces sion. That which a stream has added to our land by alluvion, for instance, belongs to us by virtue of the same law (Lib. 3, c, 2, sect. 61.) The reason of the indifference on the part of the Crown of England to alluvial soil is said by Blackstone to be, either because de mimimis non curat lex, or because owners of land, being often losers by the breaking in of the sea, or being at charges to keep it out, have thus a possible gain as a reciprocal consideration for their charge or loss: (2 Black. Com. 262.) This principle of alluvion, namely that where there is an acquisition of land from the sea or a river by gradual, slow, and imperceptible means, then such acquisition is held to belong to the owner of the adjoining land, was recognised in the great case of Rex v. Lord Yarborough (5 Bligh, N. S. 163), and also in Chapman v. Hoskins (2 Md. Ch. Decis. 485); and the converse of that rule was, in the year 1839, held by the English courts to apply to the case of a similar wearing away of the banks of a navigable river, so that there the owner of the river gained from the land in the same way as the owner of the land had in the above cases gained from the sea: (Re the Hull and Selby Railway, 5 M. & W. 327.) But if the new land be formed suddenly and perceptibly, of course the old line continues to be the boundary between the territory of the Crown or State and that of the adjoining proprietors (Phear on Rights of Water, p. 43.) The reason why this belongs to the Crown is because, since the sea or navigable rivers belong to the State, the land, when deserted by the sea or rivers, will necessarily continue in the same proprietor And thus even the accretion of land by alluvion belongs as of right to the Crown, and only as a perquisite to the owner of the land adjacent : (See Hale's De Jure Maris.) It is to be remembered that alluvion or the imperceptible increase of land means the land above ordinary high-water mark; for the land between high and low water mark, though it increase to a vast extent, belongs prima facie to the Crown. And the shore of the sea, says De Jure Maris, doth primâ facie belong to the King, viz., between ordinary high water and low-water mark. The civil law differs from the common law, as laid down in this great work, in this, that, under the civil law, the waters of the sea and the shores are subject to be used in common by all the people; every person being equally entitled to the benefit to be derived from fishing, drawing, and drying nets, and navigation. They are expressly denominated by Roman jurists res communes, and considered as omnium, in respect to their use and benefit, but in respect to their property as res nullius. By the common law, the waters of the sea, and the shores of the same, are as much subject to public use as by the civil law; but while under the civil law the property of such water, and the shores, is in no one, under the common law, the ownership is in the Sovereign: (See Taylor's Summary of Roman Law, 246; Bract. lib. 3, c. 5, s. 120; 2 Bac. Abr. 177.) And these shores embrace all the land between ordinary high-water and low-water mark. The soil between high and low-water mark may, however, be granted to private individuals or a corporation: (Attorney-General v. Burridge 10 Price Ex. R., 350; Sir John Constable's Case, 16 Vin. Abr. 576.) And any claim to Royal fish between the points where the sea ebbs and flows, must be by prescription, which pre-supposesa grant (Case of Swans, 7 Rep. 15.) When, however, the Crown conveys to private individuals the legal title to the shore, they become enabled to exercise only such acts of ownership there as the Crown itself could have done and no more; and the proprietary rights acquired are therefore subordinate to the general interests of the public: (See Phear on Rights of Water, p. 46.) While considering the principles of alluvion, we must not forget to notice the doctrine of what has been called "avulsion." Blackstone's definition of avulsion is, where, by the immediate and manifest power of a stream, the soil is taken suddenly from one man's estate and carried to another's; or, again, we might define it as the carrying away of one portion of the bank of a river, and its deposit upon another part of the river side. The owner of such land does not lose his right of soil thereby (Bract. 221; 2 Black. Com. 202.) The civil law says: "If the impetuosity of a river should sever a part of your estate, and adjoin it to that of your neighbour, it is certain that such part would still continue yours: (Just. lib. 2, tit. 1.) This is consonant with the rule of law which says, in the words of De Jure Maris, p. 15, ‘If a subject hath land adjoining the sea, and the violence of the sea swallow it up, but so that yet there be reasonable marks to continue the notice of it; or, though the marks be defaced, yet if by situation and extent of quantity and bounding upon the firm land, the same can be known, or it be by art or industry regained, the subject does not lose his property.' 'If the mark remain or continue, or the extent can reasonably be certain, the case is clear." And at p. 17, Sir Matthew Hale says: 'But if it be freely left again by the reflux and recess of the sea, the owner may have his land as before, if he can make out where and what it was; for he cannot lose his propriety of the soil, although it for a time becomes part of the sea, and within the admiral's jurisdiction while it so continues.' This principle is one not merely of English law, but is a principle founded in universal law and justice; that is to say, that whoever has land, wherever it is, whatever may be the accident to which it has been exposed, whether it be a vineyard which is covered by lava or ashes from a volcano, or a field covered by the sea or by a river, or a parcel of the soil taken suddenly away from one man's estate, and joined to another's, in each case the ground, the site, the property remains in the original owner. Where, however, there has been an accretion or accession of soil to a person's estate, the prima facie presumption of law is that such accretion has been made by alluvion and not by avulsion, and the burden is thrown upon the party claiming by avulsion of showing that such soil so joined has been suddenly severed from his own estate and been transferred to such other estate. And the reason of this is clear. A forcible and sudden breaking away of land is an unusual phenome-non, and, therefore, the presumption from nature is, that every accession of land is an alluvion until the contrary is established. (To be continued.) LAW LIBRARY. We have received from the office of the City Press a copy of the "City of London" Directory for the present year. We observe that all business changes and removals have been recorded to within a fortnight of publication, and as these are far more numerous at the end of the year than at any other period, thisforms an important feature of the work. |