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Registration of Titles. and whimsicality of the settlor; a capricious- never have on the register the title in possesness and whimsicality which it frequently hap- sion, until something got there to show the pens no judgment or remonstrance, on the death of A., and this by legal proof. part of his legal adviser, can restrain.
“Suppose, again, an estate limited on the “In France, and some other countries, the registry (in the nature of a legal settlement) law, to a great extent, regulates the relation to A. for life, with remainder to his children, ships of domestic life, and with this the dispo- equally to be divided between them; the title sition of the family property. Hence, settle- of the children, would require subsequent maments are frequently there nothing more than nifestation before it could be got on the rea declaration by the parties of the Article of gistry. It must be shown what is the number the Code under which it is intended that the of the children to take under the gift, and who, property is to be administered, and the instru- respectively they are, and the legitimacy of the ments exhibit accordingly comparative brevity. whole class must be established by proof of the Those best acquainted with the habits and marriage of the parents, with the correspondfeeling of the people of this country in dispos- ing proof of each of the parties being member ing of their property, and most familiarised to of the common class. In other words, a pedithe collection of their instructions on occasions gree must be shown and vouched before any of settlement, whether upon marriage, will, or interest whatever could be recognised under otherwise, will best be able to appreciate how the registry." far such modes of settlement would be likely to be recognised as model ones by the genius
This species of settlement, by the act of of the English people."
registry, would seem too to be practicable With this preface, Mr. Goodeve proceeds under the existing state of the law.
only in transactions inter vivos, at all events to the question of cost as connected with the preparation of the instrument of settle- “In the case of testamentary disposition the ment itself.
proprietor does not divest himself of the own“And here let the question be considered ership during his lifetime. It is the will acupon the two alternative suppositions of the cordingly, and not the registry, which is, in
this instance, the real act of settlement, and registry, developing the beneficial, or being re, before validity can be ascribed to any registrastricted to a representative, ownership. And tion of a will as constituting in itself, i.e. by first upon the former supposition. “Now, in the case in which the interest to would have to be gone through, and some ma,
the act of registration, a transfer, some process be conferred absorbs the ownership in a single chinery to be devised accordingly, which would donee, though difficult to devise the machinery, establish the validity of the will upon the same it may be possible to conceive the theory of the sort of principle upon which, in a testamentary register itself operating as the act of settlement, gift of personalty, the grant of probate of the
" A., for example, being the registered and Ecclesiastical Court constitutes a judicial warabsolute owner of an estate desires to make a made the medium of effecting the transfer, as Bank acts, to a given point, upon the testagift of it to B., - possibly the register might be ranty of the title of the executor.
In fact, though in the case of stock the in the instance of stock. Of deeds, however, mentary title, that point is only to the extent of of this simple nature, the cost, as a general a recognition of the title, not of the legatee, but rule, at most is but trifling. In cases of set- of the executor, and of the latter only, because tlement the length of the deed does not ordi- the law of the land constitutes the grant of narily arise from the insertion of recitals, but probate by the Ecclesiastical Court conclusive from the provisions of the operative portion of the deed, and in a mere deed of gift from A. to
on the question of the executor's title. B. the latter would, from the nature of things, cession by heirship, would stand upon a some
“The case of intestacy, and the right of sucbe of the simplest and least expensive kind. "Were the gift to be effected through the
what analogous footing. medium of a registry still some cost must be testamentary disposition, to invest the executor
“It has indeed been proposed, in the case of incurred by the operation, and it may be ques: with the character of a real as well as a personal tioned whether the fees, and other
expenses of registration, would not exceed the cost of the representation, and in the instance of an in
testacy to create a real representative on the present deed.”
principle of the present constitution of a per. "How the register can itself form the set- sonal one. This might obviate the difficulty, tlement, save in the instance of this com- so far as it would call into being a party complete absorption of the whole interest by petent to deal with and to direct the registrathe transfer to a single donee, remains to be tion, and with the concurrence of that party
the title, either as derived under the wil or explained.
under the intestacy, might be put upon the re“Suppose the simple case in which in the gister. Anything short of this would seem to example of an estate appearing on the registry leave the case to all the difficulties suggested as limited to A. for life, with remainder to B. above, as impeding the registration of this in fee simple, B. were to transfer the remainder species of will. to C.; notwithstanding the transfer, C. would "Supposing it to be practicable to devise a
Registration of Titles.Judgments Execution, 8c., Bill.
173 scheme constituting the register an efficient act orders of the Encumbered Estates' Comof settlement, yet, upon the theory of its de missioners in Ireland may be registered and veloping the beneficial interest, the registry enforced in England; and that decrees of must still play the part now played by the the Court of Chancery in England or Iredeed. There is no magic in the mere substitution of the machinery. The register must
land, or of Encumbered Estates' Commisrecord the intentions of the settlor, and, it sion in Ireland, may be registered and enwould seem, in pretty much the same terms as forced in Scotland. this record would now be accomplished by a It is also proposed, that where final judge deed.”
ment has been obtained in the Common Law On this point Mr. Goodeve refers to the Courts at Westminster the person entitled to case of copyholds, where the roll of the the benefit thereof may register a memorial manor is made the act of assurance, and of such judgment, and vice versa, and obtain where the form of settlement (so far as re- execution; and where final judgment has gards the point in discussion) is precisely been obtained in the Courts at Westminster the same as in settlement of real property or at Dublin, the persons entitled to the of any other tenure.
benefit thereof may register a memorial of “Copyhold settlements do not cost less than cution.
such judgment in Scotland, and obtain exefreehold ones,-in fact, the fees payable to the steward constitute a separate head of charge,
Decreets of Court of Session, or of Sheriff and additional to that incurred with the profes- tered in England or Ireland, and execution
or Burgh Courts in Scotland, may be regissional advisers of the parties. Judging from this analogy, it may be inferred, that under the obtained thereon. proposed system, an official would not be likely Consequent on these amendments, it is to be a cheaper settlement than the private one proposed that the rule by which the defendwhich is now effected by deed; on the con- ant is entitled to security for costs, where trary, the tendency would appear to be the the plaintiff resides in a different part of other way.”
the United Kingdom, shall be abolished; Turning, then, to the hypothesis of the and costs are not to be allowed in actions register being based on the representative on judgments, unless by order of Court. principle only-here, says the Author, the The Judges are empowered to make rules analogy of stock settlements will strictly for the execution of the Act; and the Judges apply. All settlements of this nature are at Westminster and Dublin to issue altered accompanied, or, rather, it should be said, writs of execution, if necessary. The Act is created, by a cotemporaneous deed, which not to affect defendants residing out of the deed is, in fact, the settlement. So must it jurisdiction of the Court at the commencebe in the case of a transfer of land to the ment of the suit or action. registered owner for the purposes of settle- The clauses of the Act are as follow:ment. The only effect of the change, there- So much of the Act 41 Geo. 3, c. 90, as is fore, as to this point, would be to add to contained in the 5th and 6th sections thereof, the cost of the deed of settlement the re- and also so much of the Act 12 & 13 Vict. c. gistration of transfer. Indeed, unless the 77, as is contained in the 14th section thereof, whole beneficial proprietorship were to be is hereby repealed; and after the passing of left exposed to the jeopardy of the dealings this Act, on production to the registrar or of those in whom the legal ownership be- in Ireland of any decree or order or of an office
other proper officer of the Court of Chancery came vested by the transfer, even the deed and the transfer would not together make been made or shall hereafter be made by the
copy of any decree or order which shall have up the whole cost. There would, it may be Court of Chancery in England for the payment supposed, have to be added that of the ca- of any money, and on production to the clerk veat, which is proposed as the protection of the entries of the report office of the Court against the risk
of Chancery in England of any decree or order or of an office copy of any decree or order
which shall have been made or shall hereafter JUDGMENTS EXECUTION, &c., BILL. be made by the Court of Chancery in Ireland,
or by the Commissioners for Sale of EncumEXECUTION
IN IRELAND, bered Estates in Ireland, for the payment of SCOTLAND, &c.-SECURITY FOR COSTS. any money, every such decree or order shall be This Bill
, which has been again intro- entered in the registrar's book of the Court of duced by Mr. Cranford, proposes that de-Chancery of Ireland or England, as the case crees and orders of the Court of Chancery office copy of the same shall be produced, and
may be, by the officer to whom the same or an in England may be registered and enforced such entry shall be certified by the proper ofin Ireland, and vice versd, and decrees or ficer at the foot of such decree or order or
Judgments Execution, &c., Bill. office copy;
and every decree or order so en- memorial so registered shall from the date of tered' shall from the date of such entry be of such registration have the effect of, in all rethe same force
and effect in all respects, and spects, and may in all respects be acted upon may in all respects be acted upon and dealt and dealt with as, a judgment of the Court in with, as a decree or order made in a suit by which it is so registered, to all intents and purthe Court in the registrar's book whereof it poses as if such judgment had been originally, shall be so entered : provided that any decree obtained or entered up in such Court : provided or order which may have been enrolled under always, that no proceeding to revive such the provisions of the said Acts before the pass- judgment shall be taken, nor shall any writ of ing of this Act may be enforced in like manner error be brought on any such memorial regisas if the said sections of the said Acts had not tered under the authority of this Act, been repealed.
4. Where final judgment in an adverse sait 2. Where any decree shall have been pro- shall have been obtained or entered up, or nounced or shall hereafter be pronounced, or shall hereafter be obtained or entered up, in any order shall have been made or shall here- any of the Courts of Queen's Bench, Common after be made for the payment of any money, Pleas, or Exchequer at Westminster or Dublin by the High Court of Chancery of England or respectively, or in any Superior Court of ReIreland, or by the Commissioners for the Sale cord in England or Ireland for any debt, daof Encumbered Estates in Ireland, on produc- mages, costs, or rent, on production at the tion at the Office in Edinburgh kept for the office kept at Edinburgh for the registration of Registration of Deeds, Bonds, Protests, and deeds, bonds, protests, and other writs regisother Writs registered in the books of Council tered in the books of Council and Session of a and Session of such decree or order, or of an memorial of such judgment, in the form conoffice copy of such decree or order, such decree tained in the schedule to this Act annexed, or order shall thereupon be registered in a book signed by the proper officer of the Court where to be kept for that purpose, and to be called such judgment has been obtained or entered the Register for English and Irish Decrees up, and sealed with the seal of such Court, and Judgments, in like manner as a bond exe- such memorial shall be registered in the Recuted according to the Law of Scotland, with a gister for English and Irish Decrees and Judgclause of registration for execution therein- ments, in like manner as a bond executed accontained, and every decree or order so regis- cording to the Law of Scotland, with a clause tered shall from the date of such registration of registration for execution therein contained; have the effect of, in all respects, and may in and every memorial so registered shall from all respects be acted upon and dealt with as, a the date of such registration have the effect of, decreet of the Court of Sessions, to all intents in all respects, and may in all respects be acted and purposes as if such decree or order had upon and dealt with as a decreet of the Court originally been obtained or pronounced in the of Session, to all intents and purposes as if Court of Session.
such judgment had originally been obtained or 3. Where final judgment in an adverse suit pronounced in the Court of Session. shall have been obtained or entered up, or 5. On production to the senior Master of the shall hereafter be obtained or entered up, in Court of Common Pleas at Westminster, or to any of the Courts of Queen's Bench, Common the Master of the Court of Common Pleas at Pleas, or Exchequer at Westminster or Dublin Dublin, of an extract, in the form contained in respectively or in any Superior Court of Re- the schedule to this Act annexed, of any decord in England or Ireland respectively, or creet of the Court of Session in Scotland which any debt, damages, costs, or rent which shall have been obtained or shall bereafter be shall have been thereby adjudged to be obtained for the payment of any debts, dapaid, on production to the Master of the mages, or expenses, signed by the extractor of Court of Common Pleas at Dublin, where the Court of Sessions, or other officer duly such judgment shall have been obtained or en- authorised to make and subscribe extracts, or tered up in any of the said Courts in England on production of an extract, in the form conor to the senior Masters of the Court of Com- tained in the schedule to this Act annexed, of mon Pleas at Westminster, where such judg- any decreet of any sheriff Court or Burgh ment shall have been obtained or entered up in Court in Scotland, which shall have been obany of the said Courts in Ireland, of a memo- tained or shall hereafter be obtained for the rial of such judgment, in the form contained payment of any debt, damages, or expenses, in the schedule to this Act annexed, signed by signed by the clerk of such Sheriff or Burgh the proper officer of the Court where such Court
, or other officer duly authorised to make judgment has been obtained or entered up, and and subscribe extracts, such extract shall be sealed with the seal of such Court, such me- registered by such Master in a register to be morial shall be registered by such Master in a kept in the Court of Common Pleas at Westregister to be kept in the Court of Common minster and Dublin respectively for that pur. Pleas at Dublin' and at Westminster respec- pose, and to be called the Register for Scotch tively for that purpose, and to be called in the Judgments, and such extract when so regisCourt of Common Pleas at Dublin The Re- tered shall from the date of such registration gister of English Judgments,” and to be called have the effect of, in all respects, and may in in the Court of Common Pleas at Westminster all respects be acted upon and dealt with as, a * The Register of Irish Judgments," and every l judgment of the Court in which it is so regis
Judgments Execution, &c., Bill.
175 tered, to all intents and purposes as if such a years, with or without hard labour ; and every judgment had been originally obtained or en person who shall be charged with committing tered up in such Court: provided always, that any such felony or crime and offence may be no proceeding to revive such decreet shall be dealt with, indicted, tried, and, if convicted, taken nor shall any writ of error be brought on sentenced, and his offence may be laid and any such extract registered under the authority of charged to have been committed, in the country this Act; provided also that where a note of sus- or place in which he shall be apprehended or pension of any such decreet shall have been pass- be in custody. ed or a sist of execution shall have been granted 9. It shall be lawful for the Lord Chancellor, thereon by the said Court of Session or any with the concurrence of the Lords Justices, Judge thereof, on the production of a certificate Master of the Rolls, and Vice-Chancellors, or under the hand of the clerk to the bill chamber any two of them, in England, and for the Lord of the Court of Session of the passing of such Chancellor and the Master of the Rolls in Irenote or granting of such sist, to a Judge of the land, and they are hereby required, from time Court in which such extract of such decreet to time to make all such general rules and has been registered, execution on such regis- orders to regulate the practice to be observed tered extract shall be stayed until a certificate in the execution of this Act or in any matter be produced under the hand of the said clerk relating thereto, including the scale of fees, to that such sist has been recalled or has expired, be charged, in the Courts of Chancery in Engor where the note of suspension has been land and Ireland respectively, as in their judgpassed, until there be produced an extract, ment shall be necessary and proper; and it under the hand of the extractor of the Court shall be lawful for the Judges of the Court of of Session or other officer duly authorised to Queen's Bench, Common Pleas, and Exchemake and subscribe extracts, of a decreet of quer at Westminster and Dublin respectively, the said Court repelling the reasons of sus- or any eight or more of them respectively, of' pension.
whom the chiefs of the said Courts respec6. It shall not be necessary for any plain- tively shall be three, and they are hereby retiff in any of the aforesaid Courts in England, quired, from time to time to make all such resident in Ireland or Scotland, or any plain- general rules and orders to regulate the practiff in of the aforesaid Courts in Ireland, tice to be observed in the execution of this Act resident in England or Scotland, to find se- or in any matter relating thereto, including the curity for costs in respect of such residence, un- scale of 'fees to be charged, in the Courts of less, on special grounds, a Judge or the Court Common Law in England and Ireland respecshall otherwise order, nor shall it be necessary tively, as in their judgments shall be necessary for any party to any suit in any of the afore- and proper; and it shall be lawful for the said Courts in Scotland, resident in England Court of Session in Scotland, and the said or Ireland, to sue by or sist a mandatary, or Court is hereby required, from time to time to otherwise to find security for expenses in re- make such acts of sederunt to regulate the spect of such residence, unless on special practice to be observed in the execution of grounds the Court shall otherwise order. this Act or in any matter relating thereto, in
7. In any action brought in any Court in cluding the scale of fees to be charged, in England, Ireland, or Scotland, on any decree, Scotland, as in its judgment shall be necesorder, judgment, or decreet, which might be sary and proper : provided always, that such registered under this Act in the country in rules, orders, and acts of sederunt respectively which such action is brought, the party bring- shall be laid before both Houses of Parliaing such action shall not recover or be entitled ment within one month from the making thereto any costs or expenses of suit, unless the of, if Parliament be then sitting, or if ParliaCourt in which such action shall be brought, ment be not then sitting within one month or some Judge of the same Court, shall other from the commencement of the then next wise order.
Session of Parliament. 8. If any person shall forge the signature of 10. Such altered writs of execution may any officer of any Court in England, Ireland, issued in the said Courts of Common Pleas at or Scotland, or the seal of any such Court, to Westminster and Dublin respectively as may any decree or order, or to any office copy of by the Judges of the said Courts respectively any decree or order, or to any memorial of a be deemed necessary or expedient for giving judgment, or to any extract of a decreet, or to effect to the provisions of this Act, and in such any other document required under this Act, forms as the Judges of such Courts respecor shall tender for registration, or use or utter, tively shall from time to time think fit to any such decree or order, office copy of a de- order; and any existing writ of execution the cree or order, memorial, extract, or document, form of which shall be in any manner altered in with a false or counterfeit signature or seal pursuance of this Act shall nevertheless be of thereto, knowing the same to be forged, he the same force and virtue as if no alteration shall be guilty of felony, and in Scotland of a had been made thereon. high crime and offence, and shall upon con- 11. Nothing in this Act contained shall viction be liable to transportation for 14 years. operate so as to enable effect to be given to any or to penal servitude for any term not exceed- decree, or order, judgment, or decreet made ing 10 years and not less than four years, or to against any defendant who at the time of the imprisonment for any term not exceeding three commencement of the suit or action was resid
176 Right of a Purchaser to deduct Income Tax out of Interest on Purchase-money. ing within the United Kingdom but out of the Clerk remitted the question to the decision of jurisdiction of the Court pronouncing such the Vice-Chancellor, before whom it was decree, or order, judgment, or decreet, unless argued by the respective solicitors on the the mesne process or the summons or other 18th December. proceeding by which such suit or action was On the part of the purchaser, the claim to commenced in that Court (except in the case deduct the income tax was resked on the 102nd of substituted service in Ireland, under section section of the Act of 1842, as regards the in34 of 16 & 17 Vict. c. 113), shall have been terest due from Christmas, 1852, to the 5th served within its own jurisdiction on such de- April, 1853, and on the 40th section of the fendant.
Act of 1853, as regards the subsequent in12. In citing this Act in any instrument, do- terest, and on the following grounds :cument, or proceeding it shall be sufficient to Interest on purchase-money comes within use the expression “The Judgments Execution the description of "yearly interest” or “ an. Act, 1854.”
nual payments” provided for by both clauses
in substance for the purpose of constituting RIGHT OF A PURCHASER TO DE. them,-there is no distinction between such inDUCT INCOME TAX
terest and the interest on mortgage-money ac. cruing after the period for payment provided
by the covenant in the mortgage deed; e.g. INTEREST ON PURCHASE MONEY.
take the ordinary form by which the mortgagor covenants to pay 1,000l. borrowed and
251. for interest at the end of six months from CONSIDERING that the Property Tax Act the date of the mortgage, or 25l. at the end of was passed in 1842, and that the question six months and 1,0251. at the end of 12 months, which arose under it between vendor and pur--in either case the borrower having paid the chaser, whether income tax ought to be allowed interest, but having failed to pay the principal out of interest on purchase-money, has been at the period fixed for its payment, is liable to one of almost daily occurrence in the practice be sued at any time for the interest which subof solicitors, it is somewhat remarkable that sequently accrues de die in diem, and such inuntil now the point has (as we believe) never terest is admitted to be yearly interest within been submitted to judicial decision. It affords the terms of both Acts. pregnant evidence of the disinclination of so- The cases noted below all arose out of aplicitors to litigate a question which, however plications for orders to pay purchase-moneys open to doubt, is yet capable of being settled into Court, fell short of deciding the question, amicably.
because the clause directing the deduction We are told that the preponderance of the applies only to cases of direct payment of inopinion and practice of the Profession inclined terest by the party liable to pay to the party to the disallowance of the claim of the pur- entitled to receive it. In Holroyd v. Wyatt, chaser to deduct the income tax.
Vice-Chancellor Knight Bruce grounded bis At length, however, an opportunity has oc- decision on the practice of the registrars in curred, under the improved practice of the drawing up such orders. In Duval v. Mount, Court of Chancery of obtaining the decision of Lord Langdale, M. R., reversed the question the Court on the question under the ordinary as between the vendor and purchaser, by direference to Chambers to take the account of recting the purchase-money not to be paid out rents and interest of purchase-money as be- without notice to the purchaser, so as to give tween vendor and purchaser, and we have the the latter the opportunity of making good his pleasure of conveying to our readers the de- claim to the deduction before the interest cision of Vice-Chancellor Wood on a point so reached the hands of the vendor. In Fligèt v: interesting to the Profession at large, and Camac, Vice-Chancellor Kindersley, expressed which becomes every day of greater import- a strong opinion in favour of the right of the ance to their clients, as the tax has been in- purchaser to the deduction as betweeu bim and creased and is likely to be increased still more. the vendor, which more than counteracts the
The question arose in a suit of Bebb v.Bunny, opposite view of the question suggested by Vicewhich was for specific performance of a con- Chancellor Knight Bruce in Holroyd v. Wyatt. tract for sale of an estate in Berkshire, to be Dinning v. Henderson, Law Jour. 191, N. S. completed as from Christmas, 1852, the pur- 273, was cited as a direct authority in favour chaser taking the rents and paying interest on of the vendor's claim. In that case, which was the purchase-money to the vendor from that an order on suit, a creditor had proved a debt time. As the Property Tax Act of 1842 (5 & 6 founded on a dishonoured bill of exchange and Vict. c. 35) expired in effect on the 5th April
, the Master in calculating interest on the bill 1853, from which time the tax was levied under had deducted income tax from the interest. On the authority of the Act of 1853 (16 & 16 Vict. motion for an order to the Master to review C. 34), the question involved the construction of both Acts on the point at issue.
Holroyd v. Wyatt, 1 De Gex & S. 125; In taking the account of interest before the Dupal y. Mount, 35 L, O. 260; Dawson F. Chief Clerk (Mr. Bloxam), the purchaser Dawson, 11 Jur. 984; Humble v. Humble, 12 claimed to deduct income tax from it; the Beavan, 43; Flight v. Camac, Weekly Revendor resisted the claim; and the Chief porter 1854. 437.