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Transfer of Land by Register. In fact, it is believed that there is not, “ First. Land held in fee simple, in absolute under the existing system, substantially any and sole proprietorship, or, what from its conwant of security; it is well known that even in vertibility is much the same thing, land, though a case of wrongful possession the difficulty is entailed, the entail in which has become vested rather to dislodge than to defend; and the well in possession. known adage is only illustrative of the general “And, secondly, land in settlement. safety which prevails in this country in regard “ There is indeed, a third species of ownerto the ownership of its soil, that 'possession is ship so far capable of falling under either nine-tenths of the law.'
classification, that, while partaking of the cha“Of course facility of dealing has only to be racter of the first in point of perpetuity of inlooked at in reference to some occasion of terest, and in some instances, capacity of transfer, and the cost in question is emphati- alienation, it virtually rather falls in general cally that attendant on transfer itself, since analogy under the second, and, assuredly, so while the ownership of land is in a state of on the question of transfer, to which I am now rest, it does not become the subject of law inviting the consideration of your lordship. charge at all. In adopting the term transfer,' This is the land held by the various corporahowever, I should explain that I do not intend tions of the country, ecclesiastical, municipal, to restrict its meaning to a complete transmis- and, as in the case of the great city and other sion of the entire interest, but to use it as in- companies, private; and of this a large part is cluding every creation of a new or modification held in absolute mortmain, as in the instance of a subsisting ownership. In this sense of of the possessions of the Church, of the unithe word transfer, in some form or other, the versities, the public schools, and ordinary chaeconomny in question is to be sought.
ritable endowments." “ And here it may be permitted to point out that that to which popular discussion on the
Mr. Goodeve then states the distinctions subject ordinarily addresses itself appears to be between strict and ordinary settlements. but a very partial and imperfect view of what the deliberation ought to comprise.
"Strict settlement,' to take it in its simplest
form, may be stated as the creation of a life inThe prominent grievance put forward terest in the head of the family—say the father for redress is (as the Author observes) the ---subject to pin money in the wise, with, upon cost of transfer, and the impediment to the father's death, jointure to her and portions dealing as applied to the case of sale.
to the younger children, with intermediate pro
vision for the maintenance of the latter out “It was mainly to meet this emergency that of the interest and advancement out of the the existing commission is understood to have capital, and subject to those interests, limitabeen appointed, and judging from the questions tions to the first and other sons in succession circulated by them among certain members of for an estate in tail male, or, in default of male the Profession (and they have done me the issue, tail general, with corresponding limitahonour to include me in the list), it is to the tions in favour of daughters, and like limitaelucidation of this question that the inquiries tions over in favour of "collateral branches of of the Commissioners appear more specially the family. Sometimes, and more particularly addressed. That, however, would be but very in noble families (where the object is to ander narrow legislation, particularly in a country in the estate to the title), a greater preference is which, like ours, so large a portion of its soil given to males by confining the limitations to is in settlement, which tried any system of the male line only. With these, there co-exist transfer by the test of its adaptation to the exi- powers of leasing, sale, and exchange. Somegencies of sale alone. Suppose it proved to times the settlement is complicated by the ex• demonstration that, tested by this criterion, istence of previous interests in senior branches some given system could be substituted, with of the family, say, for instance, a preceding life advantage, for the present one, the question estate in a grandfather or jointure would still remain behind, whether a corre- mother, and portions in uncles or aunts; and, sponding adaptation of the new system to the superadded to the settlement are powers of purposes of settlement would be such as to charging the estate with specified sums in justify its adoption. Nay, apart even from the favour of given individuals, say the parents, or question of settlement, eligibility for the pur- the creation, during the life estate of a father, poses of sale or transfer would be far from in favour of a son already born and adult, of an conclusive as a ground for the substitution in annuity, upon the terms of constituting him the question, unless it were established that there tenant for life only under, and stock of, the were no counterbalancing mischief likely to settlement. arise while the ownership was in the condition "Ordinary,' as contradistinguished from above alluded to under the expression of a strict settlement, may be taken as that of a * state of rest.'"
limitation to any given individual (say a father) Mr. Goodeve next observes, that we life interest in succession on a mother, with re
for his life, and possibly either an annuity or a should bear in mind the position of the mainder on their death to any other person or whole land in regard to ownership, and he class of persons in fee, say, for example, an thus classifies such ownership :
eldest or only child, or all the children eqnalla 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."
“Of property held in more ordinary settleIt would be valuable (says Mr. Good- ment, it may be proper on this point to diseve) if it could be ascertained what pro- held in other settlement.
tinguish between that held in strict and that portion each of the different classes of
“Of the former, as regards the inheritance ownership adverted to bears to the ag- or large ownership, the very principle is ingregate holding. Apart from the obvious alienability to the utmost allowed by the law. and more general consideration that the When alienation does take place, it is not the loss or gain of any given system must be species of alienation for which the change of more or less in the ratio of the precise system is principally proposed, but simply that extent and variety of the different subject. tinuity of the old family ownership. In the
species of re-settlement which is but a conmatters affected by it, it is manifest that usual course of things, as each generation sucthe great gain of the change of system proceeds its predecessor, and ordinarily on the ocposed being to be sought under the head of casion of the marriage or attainment of matransfer, it becomes of the highest import- jority of the elder son, the existing settlement ance to ascertain what is the extent of trans- is extinguished or remodelled for the purpose fer to which each classification of the whole of again extending it through another generaland of the country is likely to be exposed. tion, 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 sirople. "landed aristocracy,' a large part of the land “I do not wish to withdraw from observa. of the country, being the property of smaller tion that transfer is in some degree, the inci. owners, is in settlement too. The land of the dent, even during the existence of the settlemixed description of ownership above adverted ment, of property held under this form of proto, that in the holding of corporate bodies, prietorship, and the instances of the exercise of must be fof very large amount. Probably the powers of sale and exchange, and powers of estimate could not be an exaggerated one, charging, with gross sums of money, either by which, including corporate possessions, as- way of portions for younger children, or for cribed at least two-thirds of the entire area of the benefit of the owner of some limited estate, the kingdom to a holding in settlement, leaving say for example, a tenant for life, will immedione-third only to be held in sole and absolute ately occur to the mind. proprietorship."
Sales or exchanges, however, under powers Having laid this foundation, the Author land, the subject of the settlement generally,
of this description, are, relatively to the whole proceeds to consider what are the tendencies but of insignificant amount.
They address to alienation of sale, and, consequently, themselves ordinarily to specific,-usually outwhat the occasions for transfer of each of laying portions of the aggregate estate, and, in these classifications of property.
the language of Lord Eldon, require 'strong
circumstances of family prudence' to justify "Now as respects corporation property, with their exercise. (Mortlock v. Buller, 10 Ves. occasional and for the most part insignificant 308.) exceptions, a sale rarely if ever takes place. In “ Portions and other like charges will refact, this species of property seldom exhibits quire to be raised, and so far, in one sense of any other modification of the ownership than the word, involve transfer. But these, of the granting of leases, or such like transactions, course, exist in a proportion relatively small and these leave the ultimate ownership of the only to the whole estate itself, the subject of land wholly undisturbed. In fact, among cor- charge or settlement, and ordinarily involve porate bodies more especially, century after no further transfer than a mortgage. century glides by, and the muniment room “Of property held in ordinary settlement the still contains the musty deeds and charters tendency to become a subject of transfer is na
Transfer of Land by Register.-Judgment Debtor's Assets. turally much larger than of that which is held] The points for discussion thus suggested in strict settlement; and, on the question of as relating to both cost and facility of dealtransfer, property held in ordinary settlement ing, Mr. Goodeve contends,—making allowbears, perhaps, a nearer approximation in its circumstances to a case of absolute ownership,
ance for those sudden or urgent occasions than to one of settlement. In fact, at the ex. of sale which brook no delay,—the whole piration of the particular interest, say, probably, question does, in the main, practically rethat of some antecedent tenancy for life, and solve itself into but one question—the ques. the attainment of majority by the remainder- tion of cost. men, 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- of some registration.Scrip' enabled him to ac:
with it into the market, and if the production ment lasts, there is, in this species of holding, complish the sale, it is possible that this might less tendency to transfer than under an absolute proprietorship.
be effected with greater facility than it could “ It seems to follow that, applying the sys
under the present system. Even, in the case tem proposed to the occasions of transfer of put however, some delay would be likely to take the nature of sale, its benefits, in the main, place before the transaction could be finally would have to be sought in reference to the perfected, and, as matters now stand, what land held in absolute and unrestricted owner
would there be to prevent a bona fide owner ship, or in the proportion of approximation to
from entering into any contract of sale however it, and would diminish in the ratio in which hurried, beyond the natural preventative of the the holding approaches either to property held case, that buyers are not ordinarily found for for corporate interests, or under a condition of land in such sudden emergencies. In truth, strict settlement."
though I have made the exception for the sake With these data the Author proceeds to that the instances would be too few bere to re
of theoretical accuracy, it may be conjectured investigate what are the occasions of trans- quire consideration. fer, and what is the extent of cost in rela- “On the other hand, it will be familiar to tion to them under the present system. those conversant with such matters, that in any The result, he says, will aid in ascertaining ordinary case of sale, the delay in its ultimate what, in the system for which the present completion not unfrequently lies at the door, is proposed to be changed, is the tendency this
, notwithstanding a penalty of a
not of the vendor but of the purchaser, and either to abridgment of that cost or to the 51. per cent. interest to which the condition of affording of increased facilities of transfer.
his purchase exposes him." Using “ transfer” in the broader sense adverted to above, that is, as embracing Treating then, Costs, as arising under every dealing effecting a new modification one or other of the two heads, Settlement of the ownership, the occasion of transfer or Sale, Mr. Goodeve inquires of what the will be found to range within one of two elements of cost under cach head consist. leading classes.
“And here it should be observed that, of "1. Settlement.--Including under the head cost itself, the component parts will be found, testamentary disposition and the exercise of in the main, ranging under one or two heads, powers created by the instrument of settle or the combination more or less of both of ment; and,
them, and these are, Ist, the costs of the in“2. Sale.—Including mortgage in the term. vestigation into and establishment of the title
"There may be, indeed, occasional instances of the party proposing to transfer itself, includ. in which a certain species of transfer may be ing as part of the latter, those accompanying requisite, and cost may be incurred in respect matters of cost which occasionally present of it, without substantial change in the owner- themselves, as, for instance, collateral coveship, as, for example, the appointment of new nants for the production of title-deeds and the trustees, the granting of leases, the bankruptcy like." or insolvency of an existing owner, and so forth; but it is not necessary to make these a
Here we must pause for the present, and subject of distinct division, or separate consi. shall in the next or an early Number enter
on the question of the saving of expense by " Whether it would be so under the new the proposed Register of Titles. system remains to be seen. At present, mere devolution, whether by the death intestate of an ancestor, or the termination of preceding
POWER OVER JUDGMENT interests, now creates no occasion for any spe
DEBTOR'S ASSETS. cific act of transfer, and involves no cost. The mere act of taking possession is the completion of the title, and this is done wholly irrespec. Common Law Procedure Act, 1854, is dae
AMONGST the various works on the tive of legal assurance of legal cost."
Power over Judgment Debtor's Assets.
163 by Mr. Philips, the Special Pleader, who notice of the order, as therein directed, will has appended to several of the Sections a deprive the debtor of any power of dealing with concise and useful commentary. We select, the debt attached, so as to defeat the right of for the present, his notes on that part of the judgment creditor, and will render a paythe Act which authorises the examination In bankruptcy, setting apart questions of
ment to the debtor by the garnishee invalid. of a judgment debtor as to the debts due to fraudulent preference, collusion, and procurehim (s. 60), and enables a judge to order ment, the attachment, if it be made prior to an attachment on such debts (s. 61). After any act of bankruptcy, will, in case of a fiat stating these two sections, Mr. Philips re- issuing against the judgment debtor after such marks that
attachment, but before payment is enforced
from the garnishee, bind the debt notwith“Foreign attachment has long been one of standing the fiat; but it will be otherwise the most important customs of the city of where there is an act of bankruptcy prior to London. The principle is derived from the the attachment, although the judgment crecivil law, and the object of the proceeding has ditor has no notice of it, inasmuch as the title been briefly described to be to enable the of the assignees by relation will then prevail, creditor to attach the money, debts, or goods there being no provision that such attachment of his debtor in the hands of a third person, shall in that case be valid. Though the Bankand so deprive the owner of all control over rupt Law Consolidation Act, 1849, contains the subject of the attachment until he appears many provisions to protect bona fide trans. to answer the claims of his creditor, or until actions from the operation of the doctrine of the debt is satisfied.' Locke on Foreign At. title by relation, there are none that appear tachments, p. 2. The present enactment, how- capable of being applied to an attachment under ever, though no doubt suggested by the cus- this section before payment is enforced against tom of foreign attachment, makes no reference the garnishee ; s. 133 of that Act renders valid, to it, or to the rules of any court in which the notwithstanding any prior act of bankruptcy, principle of it has been adopted, but simply all executions and attachments against the presents a new mode, complete in itself, of goods and chattels of any bankrupt bona fide enforcing satisfaction of judgments, in addi-l executed and levied by seizure and sale before tion to the modes of execution at present pos- the date of the fiat or the filing of such petisessed by the Superior Courts of Common tion;' so that, even assuming, for the purpose Law. This proceeding by attachment is given of these observations, that a debt due to the only to creditors who have obtained judgment, bankrupt would be included in the expression and only against debts due to the debtors on goods and chattels,' as here used, the attachsuch judgments; the debt in respect of which ment does not, in the case referred to, come the order to attach is made being bound in the within the protection of the clause, so as to hands of the garnishee by the service of such bind the debt. It is scarcely necessary to oborder, or notice of it as directed, and payment serve, that the clause would apply precisely to by the garnishee to the judgment creditor being the case of an execution against the garnishee made enforceable by the proceedings detailed becoming bankrupt, made and levied by seizure in the sections that follow.”
and sale before the fiat. On the 62nd section Mr. Philips observes “The case of insolvency stands on that the words “Debts due or accruing to
different footing. The insolvency laws do the judgment debtor,” comprise ascertained not, as is well known, adopt the principle of
title by relation, though certain transactions debts presently payable or becoming pay- prior to the vesting order under 1 & 2 Vict. able
, and he refers to Shelton v. Mott, 6 c. 110, or the petition under the protection Exch. 231, where the words “due or grow-acts, are invalidated by express provisions ing due"
were held to include a debt directed against them; for example, the prothough not then payable. In that part of visions in those statutes as to voluntary prethe 62nd section which enacts that the ference, and as to executions on warrants of Judge's order “ shall bind such debts in his attorney, as to bills of sale, &c. There is nohands," Mr. Philips says,
thing, however, in the Insolvency Acts above
referred to, to invalidate the effect of an attach"The word 'bind,' as used in the statute ment obtained by a judgment creditor under 29 Car. 2, c. 3, s. 16, with reference to the writ this present statute, if made at any time prior of fi. fa., and its delivery to the sheriff, relates to the vesting order under 1 & 2 Vict. c. 110, to the debtor himself, so as to vacate any in- or the petition under the Protection Acts. termediate assignment made by him otherwise “In Woodland v. Fuller, 11 Ad. & Ell. 859, than in market overt; but the delivery of the on a judgment against T.
, there had been a writ to the sheriff does not change the pro- fi. fa. issued and lodged with the deputy (under perty in the goods. See per Patteson, J., in stat. 3 & 4 Will. 4, c. 42, s. 20), of the sheriff, Giles v. Grover, 1 Cl. & fin. 74, et seq. : 9 and a warrant issued by the deputy, and afterBing. 136, 137. The attachment under the wards, on the same day, a vesting order under above section, when effected by service or 1 & 2 Vict. c. 110, made, transferring the
estate of T., under which the assignee took Published by Wm. G. Benning and Co. possession of T.'s property, which was after
Power over Judgment Debtor's Assets.-J.aw of Attorneys. wards seized by the sheriff's officer, and it was “The question here is, whether the items held that the geizure was proper. It was con- which are here stated, —'attending to the tended, on behalf of the assignee, that the vest- registration of Lincolnshire in the year ing order was equivalent to a sale in market 1837, —is a proceeding within a suit
, or overt, but the Court decided otherwise ; and with a view to the suit, in a Court of Law or Patteson, J., after stating that the delivery to the deputy was a delivery to the sheriff, said, Equity? That is the question I have to con* that, however, does not change the property, sider in this case. nor, indeed, does the seizure do so (Giles v. “I am of opinion, though I do not know Grover); but the delivery does bind it, so that, whether it is necessary to come to a concluinto whosesoever hands it comes afterwards, it sion, that the Registration Court is not a is liable to be seized under the writ ; the debt- Court of Law or Equity within the Statute. or may convey it away, but not so as to defeat I concur in an observation of Mr. Palmer, the right of the execution creditor.' And as that the mere fact of calling it a court, does to the argument as to sale in market overt, the same learned Judge observed that the statute, not make it a Court of Law or Equity. It is i. e. the Insolvent Debtors' Act, merely said a court of registration ; its object is not to that the order should have the effect of vest- determine rights between contending parties, ing, without carrying the transaction beyond but the rights of persons to exercise high the conveyance under the former Insolvent constitutional functions, and to ascertain Debtors' Act, that it got rid of no charge.” who are entitled to exercise these rights ;
and although many nice questions may LAW OF ATTORNEYS. arise, and although the rights as between
parties may have, incidentally, to be deterTAXATION OF BILL OF COSTS FOR BUSI- mined by the revising barrister, still there NESS IN THE REGISTRATION COURTS. is no suit or action between parties, though
A solicitor was employed in respect of one person claims a vote and another objects some election matters, and delivered his to it. The whole object is, to perfect and bill of costs, whereupon the client obtained make accurate the list of persons qualified an order of course for its taxation, alleging to exercise the functions of voters
. It is that it did not contain any item for business easy to illustrate it thus : In the court of done in either of the courts of law or equity. common council or of aldermen a question The bill contained an item for attending
and might arise, in which it might be necessary conducting the registration for the Lincoln to employ a solicitor, but that would not district of the part of Lindsey.
make them Courts of Law or Equity within motion to discharge the order, the Master the Statute. of the Rolls said, “I am of opinion that
“I am strengthened in this by the fact, the court has jurisdiction to order the tax- that there is no observation which has been ation of this bill. The Statute says, that made as regards the Registration Courts, in case no part of such business shall have which would not equally apply to the Court been transacted in any court of law or of Bankruptcy, and yet the Act specified equity,' the Lord Chancellor or the Master proceedings in bankruptcy or lunacy, which of the Rolls may order the taxation of a would be unnecessary if they were Courts bills.
of Law or Equity. Even if Registration “The only question is, whether, on the Courts were considered Courts of Law, still construction put on those words, the busi- it would be difficult to hold, that the obness mentioned in this case comes within jecting to a vote, or the defending the right the definition business transacted in to be on the list of voters, on behalf of a court of law.'
candidate, would be a proceeding either in “The first thing which strikes me, as it a suit or with a view to a suit on his part. did Lord Lyndhurst in re Gaitskell, Phill. I cannot distinguish this from the emplos; 576, was the generality of these words, ment of a solicitor to go into Court and • business transacted in any court of law or
take a note of the proceedings in which the equity: Lord Lyndhurst says, it appears employer might be materially interested
, that these words are borrowed from the and might consider of importance to him, Statute of Geo. 2, where they have been but to which he was no party. That would repeatedly the subject of judicial decision; not be a proceeding, either in a suit or with and the doctrine of all the cases is, that to a view to a suit. In that view, it is imposcome within the meaning of those words, sible to say, that this is a proceeding in the business must be some proceeding either a court of law or equity within the mean. in a suit or with a view to à suit.' This is ing of the Statute. It is said that the Bill the key to the construction.
ought to be taxed at law, but this is merely