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Dishonoured Bills of Exchange Bill.-Transfer of Land by Register.

[Copy the Bill or Note and Protest.] Therefore it is considered, that the said A. B. recover against the said C. D., E. F., &c., £ with interest thereon since the said bill (or note) became due, together with the sum of £ for costs of protest, registration, and service unless the said sum of £ with such interest and costs as aforesaid shall be paid within six days after service hereof, exclusive of the day of service. We command you, therefore, that within six days after the service of this order on you, exclusive of the day of such service, you make payment to the said A. B. of the said respective sums of £1 and £2 together amounting to the sum of £ and also such interest as aforesaid, and take notice, that in default of your so doing this order will have the effect of a judgment, and the said A. B. may proceed to execution against you: Take notice, that if you can show cause why, on non-payment within such six days, execution should not issue against you upon this order you must apply upon affidavit showing such cause to the Court of Common Pleas at Westminster, or to a Judge, without delay.

Witness, &c.

No. 2. (Same as No. 1.) Indorsement to be made on Writ before Service thereof.

This writ is for service out of the jurisdiction of the Court.

a

It seems evident, on a cursory perusal of several of the clauses in this Bill, that long series of decisions may be expected on the construction of the Act (if it should pass) before the change can be settled or the anticipated advantages and disadvantages sufficiently tried.

TRANSFER OF LAND BY REGISTER.

transfer by deed, to constitute a registryat the same time the medium of conveyance of all the lands in the kingdom and the index of title to them.

"To accomplish this two plans have been proposed, one to make the register itself the instrument of assurance,—as in the case of stock, the transfer from one holder to another is effected by the mere substitution in the bank books,—the other is to have a short conveyance, somewhat after the fashion of a railway one, which, however, is to be registered, and the joint operation, the execution of the deed and its registration, is to complete the transfer.”

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Independently of its subsequent registra tion, the deed, it is understood, would connect itself, in its parcels, with the register, and the register, in its turn, with schedules or maps, and the deed would have operation only by reference to them. The distinction in the me chanism, and the ultimate preference of even the latter of the two plans, would still leave the transaction practically a register transfer, -certainly so for all the purposes of this discussion,—and, in the observations which follow, I shall accordingly take leave to consider both but one and the same scheme.

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the attainment of which the new system has been Regard being had to the same objects, for proposed, it would appear to be its most essential element that the act of registration should create a title, in the nature of a parliamentary warranted one, in the party registered, and so as on all future dealings to exclude the occasion for any retrospective investigation or insame way as, in the instance of stock, the bank quiry as to the past ownership, just in the books are taken as the conclusive evidence of the title and the right to transfer."

Whether, however, this, in its fulness, is result of the establishment of a register, or to be the immediate and contemporaneous AN able pamphlet has just been publishto be matter of gradual accomplishment ed in the form of a Letter to the Lord only, (Mr. Goodeve observes) is that upon Chancellor, on "The Contemplated Transfer divided in opinion, both agreeing only in which the proposers of the scheme appear of Land by Register," written by Joseph the immediate opening of the register. Goodeve, Esq., Barrister-at-Law; and we deem it important to place the views of the Author before our readers.

We shall, in the first instance, state Mr. Goodeve's view of the nature of the proposed plan for remedying the evils complained of in the present system.

"The scheme,' says the Author, "in contemplation involves the abolition of the existing mode of transfer of land, and of the manifestation of the title to it; and proposes, in substitution for the present

1

Principal moneys in bill or note.

a Costa.

"The recommendation of one party is to make the registration of every title conclusive of that title's validity from the moment of its on some previous process of authentication, registration, founding the registration only though what that process is to be, does not, as yet, appear developed. The plan of the other party is to admit to registration the dealings with the property posterior to the opening of the registry, or rather to make the register the medium of transfer on the occasion of those fers subsequent to the original one the virtue dealings; but, while conferring on all trans

of a registry title, to leave the title anterior to the original registration open to its original

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159

condition, with (if any) its original infirmities, vanishes accordingly, as a subject of settlement, and to trust the care of these only to the sub- with the attainment of majority by the remainder-men. sequent lapse of time.

"As little does it appear to be altogether determined by the proposers of the change, whether the new system of title is to be purely a representative one, vesting, in case of settlement or divided interest, the apparent ownership in trustees, as in the instance of stock, and limiting the record of the title accordingly; or, whether the register is to be opened to the whole beneficial title in the way in which, in a settlement of copyholds, the rolls of the manor more usually develope it.

pass

"In the instance of stock, too, names and figures are sufficient to represent the subject of ownership, and millions with no greater difficulty than hundreds under the title A. B., of, &c., £ s. d.: and by the substitution in the bank books of the sum represented by these figures, or any part of it, of C. D., of, &c., for the A. B. But this is for the simple reason that the whole public debt or stock, the portion of which is the subject of dealing, is but a larger aggregate of £ s. & d. And in "The former, however, is that to which every transfer of stock accordingly quantum preference seems to be ordinarily given; and and not particulars, in other words proportion as the example of stock appears to have sug-to an aggregate and not the detail of the progested the whole scheme, so this example is usually referred to as the evidence of its practicability.

portion, is all that need be specified. In the disposition therefore of any portion of stock, be the sum small or be it large, any figure of £ 8. & d. represents the operation. In the case of land, however, the transfer is not one of a proportionate amount to the whole soil of the kingdom, which, to make the analogy com

"On the supposition of the adoption of the representative principle, a system of caveats is proposed for the protection of the beneficiaries, much on the principle upon which, in the case of stock the law provides the security of a dis-plete, it ought to be, but of some specific altringas against its improper transfer."

Mr. Goodeve then proceeds to notice the distinction between Land and Stock :

lotment, and in some defined locality. From the very nature of things, therefore, no such general representative as that which exists in

the case of stock, in the instance of £ s. & d. would be applicable.

"The original debt of which the present stock is but the representative or continuation, having been contracted in favour of those ascertained individuals who first subscribed to

"One cannot but observe, in passing, the distinction lying at the foundation of both, that while the very term 'Land' involves a perpetuity of duration, and, in some hands or other, continuity of ownership, Stock, notwithstanding the permanent inscription in the books the loan in respect of which it was created, the of the bank of an equivalent representative for bank books started as a record of the respecevery sum bought or sold, not only is at all tive titles of the subscribers to the several amounts of stock allotted to them in respect of time, as regards its individual ownership, evan- their subscriptions-in other words, as the escent in character, acquired to-day, parted original title-deed or grant of their stock-and with to-morrow, but loses on almost every each subsequent transfer in the books has been occasion of transfer, its whole form and substance, and, with that loss, all power of future but one of a series of assignments of the origi identification. A., the holder of 1,000 in nal ownership. To constitute accordingly a public register, discharging, in relation to land, consols to-day, transfers it to-morrow to B., the function discharged by the books of the who subsequently transfers 500%. of it to C. bank with regard to stock, there would seem and 500/. of it to D., or B., on the occasion of to be the preliminary requisite of placing upon the original transfer to him, has already an- the register as well the whole land of the other 1,000l. of consols standing in his name in the bank books: the stock passes, as it kingdom as its ascertained and authenticated were, from hand to hand like any ordinary ownership. How this is to be effected origi chattel, and its identity becomes annihilated

on each transfer.

nally, or the operation once completed, how the ever varying changes both in the condition of the soil itself, and its ownership (changes almost as frequent and as varied as the ever shifting phases of a cloud scenery), how these are to be got on the register, so as from time to time to connect each changing ownership with the varied form of its subject, will be found a problem of no easy solution, and some observations will be subsequently addressed to it."

"Moreover, the ownership of land presents every variety of modification, and that not unfrequently under a series of limitations, ranging sometimes (though derived under a single instrument) in point of actual duration over a century, and capable of even a longer extension. On the other hand, in the case of stock, even when forming the subject of settlement, the extent of that settlement is usually the mere The project is designed as a boon to the gift of life interests to individuals in being at the time of its creation: say, for instance, landowner. The two leading advantages parents with a limitation over in remainder, suggested are economy and facility of dealamong some particular class, living at the ex-ing. Increased security has occasionally piration of the life interest, er. gr. children, been held out as another advantage, but this and the whole fund becomes distributable and appears to form but a small part of the boon.

K 5

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Transfer of Land by Register.

"In fact, it is believed that there is not, under the existing system, substantially any want of security; it is well known that even in a case of wrongful possession the difficulty is rather to dislodge than to defend; and the well known adage is only illustrative of the general safety which prevails in this country in regard to the ownership of its soil, that possession is nine-tenths of the law.'

"Of course facility of dealing has only to be looked at in reference to some occasion of transfer, and the cost in question is emphatically that attendant on transfer itself, since while the ownership of land is in a state of rest, it does not become the subject of law charge at all. In adopting the term 'transfer,' however, I should explain that I do not intend to restrict its meaning to a complete transmission of the entire interest, but to use it as including every creation of a new or modification of a subsisting ownership. In this sense of the word transfer, in some form or other, the economy in question is to be sought.

"And here it may be permitted to point out that that to which popular discussion on the subject ordinarily addresses itself appears to be but a very partial and imperfect view of what the deliberation ought to comprise.

The prominent grievance put forward for redress is (as the Author observes) the cost of transfer, and the impediment to dealing as applied to the case of sale.

"It was mainly to meet this emergency that the existing commission is understood to have been appointed, and judging from the questions circulated by them among certain members of the Profession (and they have done me the honour to include me in the list), it is to the elucidation of this question that the inquiries of the Commissioners appear more specially addressed. That, however, would be but very narrow legislation, particularly in a country in which, like ours, so large a portion of its soil is in settlement, which tried any system of transfer by the test of its adaptation to the exigencies of sale alone. Suppose it proved to demonstration that, tested by this criterion, some given system could be substituted, with advantage, for the present one, the question would still remain behind, whether a corresponding adaptation of the new system to the purposes of settlement would be such as to justify its adoption. Nay, apart even from the question of settlement, eligibility for the purposes of sale or transfer would be far from conclusive as a ground for the substitution in question, unless it were established that there were no counterbalancing mischief likely to arise while the ownership was in the condition above alluded to under the expression of a 'state of rest.'

Mr. Goodeve next observes, that we should bear in mind the position of the whole land in regard to ownership, and he thus classifies such ownership :

"First. Land held in fee simple, in absolute and sole proprietorship, or, what from its convertibility is much the same thing, land, though entailed, the entail in which has become vested in possession.

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And, secondly, land in settlement.

"There is indeed, a third species of ownership so far capable of falling under either classification, that, while partaking of the character of the first in point of perpetuity of interest, and in some instances, capacity of alienation, it virtually rather falls in general analogy under the second, and, assuredly, so on the question of transfer, to which I am now inviting the consideration of your lordship. This is the land held by the various corporations of the country, ecclesiastical, municipal, and, as in the case of the great city and other companies, private; and of this a large part is held in absolute mortmain, as in the instance of the possessions of the Church, of the universities, the public schools, and ordinary charitable endowments."

Mr. Goodeve then states the distinctions between strict and ordinary settlements.

"Strict settlement,' to take it in its simplest form, may be stated as the creation of a life interest in the head of the family-say the father

subject to pin money in the wife, with, upon the father's death, jointure to her and portions to the younger children, with intermediate provision for the maintenance of the latter out of the interest and advancement out of the capital, and subject to those interests, limitations to the first and other sons in succession for an estate in tail male, or, in default of male issue, tail general, with corresponding limitations in favour of daughters, and like limitations over in favour of collateral branches of the family. Sometimes, and more particularly in noble families (where the object is to annex the estate to the title), a greater preference is given to males by confining the limitations to the male line only. With these, there co-exist powers of leasing, sale, and exchange. Sometimes the settlement is complicated by the existence of previous interests in senior branches of the family, say, for instance, a preceding life estate in a grandfather or jointure in a grandmother, and portions in uncles or aunts; and, superadded to the settlement are powers of charging the estate with specified sums in favour of given individuals, say the parents, or the creation, during the life estate of a father, in favour of a son already born and adult, of an annuity, upon the terms of constituting him the tenant for life only under, and stock of, the settlement.

"Ordinary,' as contradistinguished from strict settlement, may be taken as that of a limitation to any given individual (say a father) life interest in succession on a mother, with refor his life, and possibly either an annuity or a mainder on their death to any other person or class of persons in fee, say, for example, an eldest or only child, or all the children equall

Transfer of Land by Register.

161

and on attainment of majority respectively, with which exhibit the title to the original possesintermediate powers of maintenance, and, pro- sions. bably, leasing, sale and exchange.”

It would be valuable (says Mr. Goodeve) if it could be ascertained what proportion each of the different classes of ownership adverted to bears to the aggregate holding. Apart from the obvious and more general consideration that the loss or gain of any given system must be more or less in the ratio of the precise extent and variety of the different subjectmatters affected by it, it is manifest that the great gain of the change of system proposed being to be sought under the head of transfer, it becomes of the highest importance to ascertain what is the extent of transfer to which each classification of the whole land of the country is likely to be exposed.

"Of property held in more ordinary settlement, it may be proper on this point to distinguish between that held in strict and that held in other settlement.

"Of the former, as regards the inheritance or large ownership, the very principle is inalienability to the utmost allowed by the law. When alienation does take place, it is not the species of alienation for which the change of system is principally proposed, but simply that tinuity of the old family ownership. In the species of re-settlement which is but a conusual course of things, as each generation succeeds its predecessor, and ordinarily on the occasion of the marriage or attainment of majority of the elder son, the existing settlement is extinguished or remodelled for the purpose of again extending it through another generation, the tenant in tail, and offspring of the stock of to-day being cut down to the tenant "Unfortunately there are no statistics ca- for life and stock of the new entail of to-morrow. pable of affording accurate information on the But so the series goes on, generation after gepoint. It will be remembered, however, that neration, in perpetual succession, until families the possessions of the landed aristocracy are become exhausted, or some great disturbing more ordinarily held in settlement, and, most cause arrives, and the instances are not few, usually so, in strict settlement, and this hold- and particularly among the noble families of ing would accordingly almost absorb that por- the country, of a perpetuation of the ownership tion of the whole soil which falls to the posses- in the same family almost for centuries. The sion of the House of Lords and a large part result is that transfer, in the more ordinary of that of the House of Commons. In fact, sense of the word, of property held in strict settlement is very much the habit of the people, settlement during the existence of the settlegenerally, even of the middle classes, both by ment, is comparatively of small extent. When way of marriage provision and testamentary the settlement becomes exhausted, although disposition, and there can be no doubt that not until then, the property, its original subeven independently of what may be more ap-ject, ranges itself under the head of property propriately referred to the ownership of the held in fee simple.

landed aristocracy,' a large part of the land "I do not wish to withdraw from observaof the country, being the property of smaller owners, is in settlement too. The land of the mixed description of ownership above adverted to, that in the holding of corporate bodies, must be [of very large amount. Probably the estimate could not be an exaggerated one, which, including corporate possessions, ascribed at least two-thirds of the entire area of the kingdom to a holding in settlement, leaving one-third only to be held in sole and absolute proprietorship."

Having laid this foundation, the Author proceeds to consider what are the tendencies to alienation of sale, and, consequently, what the occasions for transfer of each of these classifications of property.

"Now as respects corporation property, with occasional and for the most part insignificant exceptions, a sale rarely if ever takes place. In fact, this species of property seldom exhibits any other modification of the ownership than the granting of leases, or such like transactions, and these leave the ultimate ownership of the land wholly undisturbed. In fact, among corporate bodies more especially, century after century glides by, and the muniment room still contains the musty deeds and charters

tion that transfer is in some degree, the inci dent, even during the existence of the settlement, of property held under this form of proprietorship, and the instances of the exercise of powers of sale and exchange, and powers of charging, with gross sums of money, either by way of portions for younger children, or for the benefit of the owner of some limited estate, say for example, a tenant for life, will immediately occur to the mind.

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Sales or exchanges, however, under powers land, the subject of the settlement generally, of this description, are, relatively to the whole but of insignificant amount. They address themselves ordinarily to specific,-usually outlaying portions of the aggregate estate, and, in the language of Lord Eldon, require 'strong circumstances of family prudence' to justify their exercise. (Mortlock v. Buller, 10 Ves. 308.)

"Portions and other like charges will require to be raised, and so far, in one sense of the word, involve transfer. But these, of course, exist in a proportion relatively small only to the whole estate itself, the subject of charge or settlement, and ordinarily involve no further transfer than a mortgage.

"Of property held in ordinary settlement the tendency to become a subject of transfer is na

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Transfer of Land by Register.-Judgment Debtor's Assets.

The points for discussion thus suggested

ing, Mr. Goodeve contends,—making allowance for those sudden or urgent occasions of sale which brook no delay,—the whole question does, in the main, practically resolve itself into but one question-the question of cost.

turally much larger than of that which is held in strict settlement; and, on the question of as relating to both cost and facility of dealtransfer, property held in ordinary settlement bears, perhaps, a nearer approximation in its circumstances to a case of absolute ownership, than to one of settlement. In fact, at the ex. piration of the particular interest, say, probably, that of some antecedent tenancy for life, and the attainment of majority by the remaindermen, when the settlement itself virtually ends, land held in ordinary settlement resolves itself "Doubtless, there may be instances in altogether, save in the article of subdivision, which, for some unexpected purpose, it might into land of which the ownership is absolute. be convenient to the owner of land to rush On the whole, however, so long as the settle- with it into the market, and if the production ment lasts, there is, in this species of holding, of some registration Scrip' enabled him to ac less tendency to transfer than under an abso-complish the sale, it is possible that this might lute proprietorship. be effected with greater facility than it could under the present system. Even, in the case put however, some delay would be likely to take place before the transaction could be finally perfected, and, as matters now stand, what would there be to prevent a bona fide owner from entering into any contract of sale however hurried, beyond the natural preventative of the case, that buyers are not ordinarily found for land in such sudden emergencies. In truth, though I have made the exception for the sake that the instances would be too few here to reof theoretical accuracy, it may be conjectured quire consideration.

sys

"It seems to follow that, applying the tem proposed to the occasions of transfer of the nature of sale, its benefits, in the main, would have to be sought in reference to the land held in absolute and unrestricted ownership, or in the proportion of approximation to it, and would diminish in the ratio in which the holding approaches either to property held for corporate interests, or under a condition of strict settlement."

With these data the Author proceeds to investigate what are the occasions of transfer, and what is the extent of cost in relation to them under the present system. The result, he says, will aid in ascertaining what, in the system for which the present is proposed to be changed, is the tendency either to abridgment of that cost or to the affording of increased facilities of transfer.

Using "transfer" in the broader sense adverted to above, that is, as embracing every dealing effecting a new modification of the ownership, the occasion of transfer will be found to range within one of two leading classes.

"1. Settlement. Including under the head testamentary disposition and the exercise of powers created by the instrument of settlement; and,

"2. Sale.-Including mortgage in the term. "There may be, indeed, occasional instances in which a certain species of transfer may be requisite, and cost may be incurred in respect of it, without substantial change in the ownership, as, for example, the appointment of new trustees, the granting of leases, the bankruptcy or insolvency of an existing owner, and so forth; but it is not necessary to make these a subject of distinct division, or separate consi.

deration.

"Whether it would be so under the new system remains to be seen. At present, mere devolution, whether by the death intestate of an ancestor, or the termination of preceding interests, now creates no occasion for any specific act of transfer, and involves no cost. The mere act of taking possession is the completion

"On the other hand, it will be familiar to those conversant with such matters, that in any ordinary case of sale, the delay in its ultimate completion not unfrequently lies at the door, this, perhaps, notwithstanding a penalty of a not of the vendor but of the purchaser, and 57. per cent. interest to which the condition of his purchase exposes him."

Treating then, Costs, as arising under one or other of the two heads, Settlement or Sale, Mr. Goodeve inquires of what the elements of cost under cach head consist.

"And here it should be observed that, of cost itself, the component parts will be found, in the main, ranging under one or two heads, or the combination more or less of both of them, and these are, 1st, the costs of the investigation into and establishment of the title of the party proposing to transfer itself, including as part of the latter, those accompanying matters of cost which occasionally present themselves, as, for instance, collateral covenants for the production of title-deeds and the like."

Here we must pause for the present, and shall in the next or an early Number enter on the question of the saving of expense by the proposed Register of Titles.

POWER OVER JUDGMENT
DEBTOR'S ASSETS.

AMONGST the various works on the

of the title, and this is done wholly irrespec- Common Law Procedure Act, 1854, is one tive of legal assurance of legal cost.'