tenth parts of the nett profits of the working of the colliery up to the time of the sale of the colliery, lease, plant and other things to the company, after deducting all expenses and allowing interest on the purchase money and capital employed. And the now defendant, as such solicitor, accepted such retainer and employment, and the now plaintiff afterwards and during such retainer and employment, and before the committing, &c., requested the now defendant to cause and procure the bill of complaint to be registered as a lis pendens according to the statutes in that behalf, and by reason of the premises it became and was the duty of the defendant to cause and procure the bill of complaint to be registered as a lis pendens according to the statutes in that behalf. Breach, that the now defendant negligently conducted himself as solicitor, and for a long time neglected and omitted to cause or procure the bill of complaint to be registered as a lis pendens, whereby Daniell was enabled to and did sell and dispose of the lease and premises to another company, which otherwise and but for the premises he could not have done, and was enabled to and did receive to his own use the consideration from such sale and disposal thereof, and thereby and by reason of the subsequent inability of Daniell to meet his engagements, the now plaintiff wholly lost and has been deprived of all share of the benefits and profits derived from the lease and disposal thereof, &c.

Fourth plea-That the plaintiff did not request the defendant, as such solicitor, to cause and procure the bill of complaint to be registered as a lis pendens according to the statutes in that behalf as alleged.

Demurrer and joinder in demurrer. McCall (Baylis with him), in support of the demurrer.-The declaration shews a good cause of action, and the plea, which raises an immaterial issue, is bad. By 2 & 3 Vict. c. 11. s. 7 (1), a lis pendens does

(1) By 2 & 3 Vict. c. 11. s. 7, no lis pendens shall bind a purchaser or mortgagee without express notice thereof, unless and until a memorandum or minute containing the name and the usual or last known place of abode, and the title, trade or profession of the person whose estate is intended to be affected thereby, and the Court of equity, and

not bind purchasers or mortgagees in the absence of express notice, unless it is registered in the manner prescribed in the section. In Cooper v. Stephenson (2) it was held that an action might be maintained against an attorney who, when employed to prepare a mortgage deed, neglected to make the necessary searches to ascertain whether the proposed mortgagor had been insolvent. (He was then stopped.)

It

J. Brown (Trevelyan with him), for the defendant. The plea is good. The bill in Chancery, which is stated to have been filed by the plaintiff, did not seek to enforce any charge upon the lease of the colliery as against the company who had purchased it from the lessee, but merely asked that four-tenths of the consideration for the assignment should be secured to the plaintiff. It is admitted that at the time of filing the bill the estate in the lease had been already disposed of. The case, therefore, is not one in which the registration of a lis pendens would have had any effect, and there has been no breach of duty on the part of the defendant. appears to have been well settled before the passing of the Act that a lis pendens must relate to the estate, and not to the money secured upon it-Sugden's Vendors and Purchasers, 14th ed. 758; Worsley v. Scarborough (3); Bellamy v. Sabine (4). The plaintiff's claim did not come within this definition, for it was practically a money demand. In Barned's Banking Company, ex parte Thornton (5) Lord Cairns says, "Lis pendens, a technical expression, always implied a claim of right, or a claim to charge some specific property." property." But even admitting that the bill might have been registered as a lis pendens within the meaning of the Act, it does not follow that the defendant, without express instructions, was bound to register it, and is to have an action brought against him for omitting to do so.

It

the title of the cause or information, and the day when the bill or information was filed, shall be left with the senior Master of the Court of Common Pleas, &c.

(2) 21 Law J. Rep. (N.S.) Q.B. 292. (8) 3 Atk. 392.

(4) 1 De Gex & J. 566; s. c. 26 Law J. Rep. (N.S.) Chanc. 797.

(5) 36 Law J. Rep. (N.s.) Chanc. 190.

appears that the plaintiff claimed under an agreement in writing, and the defendant might well have assumed that the estate would be charged without the necessity of registering the suit.

Baylis was not heard in reply.

COCKBURN, C.J.-I do not think that we need call for a reply. Our judgment is clearly in favour of the plaintiff. The case turns very much upon the purport and effect of a bill filed in the Court of Chancery. I was at first under the impression that the whole object of this suit was to secure to the plaintiff, by the decree of the Court of Chancery, the payment of four-tenths of the proceeds of the sale of the colliery. But on looking at the case more closely I have come to the conclusion that the object of the suit was to secure to him, whatever might be the form of the transaction between the vendor and purchaser of the lease, the payment of four-tenths of the purchasemoney, or to secure an interest in the proceeds of this money to the extent of four equal tenth parts; and with a view of completing the security to make the intended purchasers parties to the suit. That being so, I take it that the doctrine of lis pendens would clearly apply to this case. Now the statute, 2 & 3 Vict. c. 11. s. 7, has introduced this qualification, that the lis shall not bind a purchaser or mortgagee without express notice thereof, unless a memorandum or minute containing certain particulars shall be left in the Court of Common Pleas for registration. Therefore, although the suit would have been notice, and effective against the intended purchasers, who were made parties to the suit, yet the effect of the suit has been baffled and frustrated by the fact that they did not complete the transaction, and now purchasers have succeeded who had no such notice, and consequently were not bound by the suit. The plaintiff has, therefore, been prejudiced by reason of the requisitions of the statute not having been complied with. The object of the suit being to protect his interest in the purchase-money, the omission to register the pendency of the suit has been fatal to him, and he has lost the protection which

it was the object of the suit to obtain. Now it was undoubtedly a part of the knowledge which the defendant, as a solicitor, must be taken to have had, to know that it was necessary to register, and consequently the omission to do so was negligence on his part. The action is therefore maintainable.

BLACKBURN, J.—I am of the same opinion. We have to deal with what appears on the record, from which it appears that the plaintiff had an equitable interest in the lease of a colliery, and Daniell had entered into an agreement for the sale of the lease to a joint stock company. This being so, the plaintiff, as the owner of four-tenths of the lease, retained the defendant as solicitor to institute a bill in Chancery for the purpose of enforcing the plaintiff's interest and claims in respect of his shares in the lease. The retainer is to conduct a suit in Chancery for the specific purpose of protecting the plaintiff as equitable owner of four-tenths of this property. The bill prays for a conveyance and security for the plaintiff's share of the purchaso money, and that the company, the proposed purchasers, should be enjoined to do all things necessary to confirm such conveyance and security to the plaintiff. Now the plaintiff could have no claim whatever against the company as purchasers without notice, except on the following ground, viz., he might say: "I am equitable owner of four-tenths of the lease, and I am entitled to have an equitable lien on the land and the lease for four-tenths of the purchase-money." The very object of the suit was for the purpose of protecting his rights, and I must take it on the construction of this record, that the suit was to enforce a specific equitable interest in this specific property. Now, before the statute would this have been a lis pendens which would have prevented purchasers from getting complete possession of the property? Mr. Brown has argued that it is not lis pendens unless there is a specific statement in the bill that the plaintiff' has a right to the property, and no doubt the bill as mentioned in the declaration contains no such statement. But is not the essence of a lis pendens this,

66

that there is a suit to obtain a charge upon a specific property, and the defendants are able to do something which, if the purchasers from them were to have no notice, would completely baffle the object of the suit? In such case, the old law said, "Where there is notice of the suit the plaintiff shall not be defeated." The case of Bellamy v. Sabine (4) is explained in 2 White and Tudor's Leading Cases, 3rd edition, p. 63, notes to Le Neve v. Le Neve, on the ground that the equitable title there was one to which it was not ne cessary for any of the purposes of the suit to give effect." But here a declaration that the plaintiff is equitably interested in the lease is necessary to give effect to the purposes of the suit. Then the statute enacts that if certain particulars be registered the purchaser from the defendant shall be in no better position than the defendant himself. Through the omission to register these particulars the plaintiff has been deprived of the opportunity of enforcing his equitable right. Then it is argued by Mr. Brown that we cannot say that in every case the solicitor would be guilty of negligence in not filing the memorandum. But here, where the very object of the suit was to protect the interests of the plaintiffs, prima facie the solicitor ought to know that for the purpose of protecting them he should have registered the lis pendens. If the circumstances proved at the trial rebut that fact, then the declaration will be disproved; but on demurrer, we must take it to be true, and then the plea is no answer to the declaration.

QUAIN, J.-I am of the same opinion. I think that if the words, as to the request to the defendant to cause the bill to be registered as a lis pendens were struck out, the declaration would be amply sufficient. It alleges the plaintiff's interest in the lease, the filing of the bill, and the retainer of the defendant as solicitor, and then alleges that he "disregarded his duty as such solicitor." If it stopped there it would have been enough, but it goes on to aver that he "wholly neglected to cause the bill to be registered as a lis pendens." This is a breach of duty. Mr. Brown argues that in point of law there was no duty to re

gister; I cannot follow his argument, for the very object of the suit was to obtain a decree that the plaintiff was entitled to four-tenths of the value of the lease, and this bill was filed for the purpose of asserting his right, and to make the company trustees with regard to his interest in the property. In Dart on Vendors and Purchasers, 4th edition, vol. ii., p. 797, the learned author, referring to Bellamy v. Sabine (4), says, "This case seems to have established the rule that lis pendens does not affect a defendant with notice of the plaintiffs' rights other than those asserted in the pending litigation." Now, can anyone doubt that this plaintiff's rights were asserted in the pending litigation. Therefore, it clearly appears that this was a lis pendens which ought to have been registered, and the effect of the non-registration was that the estate was sold to another company, and that the bill failed by reason of this lis pendens not being registered. Under these circumstances I think that the plaintiff is entitled to judg

ment.

Judgment for plaintiff.

Attorneys-Church & Clarke, for plaintiff; Combe & Wainwright, for defendant.

1872.

Jan. 17.

WHITE (appellant) v. FEAST (respondent).

Malicious Injury to Real Property-Fair and Reasonable Supposition of Right to do Act complained of.

By 24 & 25 Vict. c. 97. s. 52, “whoever shall wilfully or maliciously commit any damage, injury, or spoil, to or upon any real or personal property whatsoever, either of a public or private nature, for which no punishment is hereinbefore provided, shall, on conviction before a justice," be subject to fine or imprisonment, &c. ....; "provided that nothing herein contained shall extend to any case where the party acted under a fair and reasonable supposition that he had a right to do the act complained of."

The appellant was summoned before justices under this section. It appeared

that he was in the employment of D., and that by his order he forcibly entered a garden belonging to and in the occupation of the respondent, accompanied by thirteen other men, and cut a small ditch, from forty to fifty yards in length, through the soil. The respondent and his predecessor in title had occupied the garden for thirty-six years, and during the whole time there had been no ditch upon the site of part of that cut by the appellant. For the defence D. was called, who stated that fifteen years before, there had been an open ditch in the land in question, which received the drainage from the highway, and that he gave directions for the ditch to be cut by the appellant, in the exercise of what he considered to be a public right.

The justices found that the appellant had no fair and reasonable supposition that he had a right to do the act complained of, and accordingly convicted him :

Held, that by the express words of the section and proviso, the jurisdiction of the justices was not ousted by the mere bona fide belief of the appellant that his act was legal, and that there was evidence on which they might properly find that he did not act under the fair and reasonable supposition required by the statute.

Municipal Corporation-Election-Married Women not entitled to vote-32 & 33 Vict. c. 55. ss. 1, 9.-33 & 34 Vict. c. 93.

There is nothing in the Municipal Franchise Act, 1869, 32 & 33 Vict. c. 55, or in the Married Women's Property Act, 1870. (33 34 Vict. c. 93), which enables a married woman to be placed on the burgess roll and to vote at the election of town councillors.

Semble, that a woman who marries after her name has been placed on the burgess roll is also disqualified from voting.

This was a rule calling on C. Harrald to shew cause why an information in the nature of a quo warranto should not issue, calling upon him to shew by what authority he exercised the office of town councillor for the borough of Sunderland.

It appeared from the affidavits that on the 1st of November, 1871, there was an election of town councillors for Sunderland, at which the defendant was elected by a majority of one over the next candidate. Amongst the votes which went to make up the majority were those of Anne Thompson, a married woman living separate from her hushand, but occupying a house and paying rates as though she were a single woman, and Nancy Storey, who, although a single woman when she was placed on the burgess roll, had married just before the election.

Crompton shewed cause.-It is submitted that no valid objection can be taken to the votes of either of the two married women. With regard to Anne Thompson, by the Municipal Franchise Act, 32 & 33 Vict. c. 55. s. 1 (1), any person who has occupied a house for the prescribed period and paid rates is, if duly enrolled according to 5 & 6 Will. 4, a burgess, and enabled to vote. By section 9 it is provided that in the Act and in 5 & 6 Will. 4. c. 76, words which import the masculine gender shall include females for all purposes having reference to the right to vote in the election of councillors, &c. There is nothing in the Act to prevent these words from applying to married women. Moreover, by the Married Women's Property Act, 1870, 33 & 34 Vict. c. 93, married women are made capable of entering into contracts and acquiring property. The case of The Queen v. Tugwell (2)

is an authority to shew that where the burgess roll has once been made up under 5 & 6 Will. 4. c. 76, the right of a voter, if a male, cannot be questioned. Therefore, if a male with a property qualification at the time of his enrolment afterwards transferred his property, his title to vote could not be questioned. It follows that Nancy Storey, who had a proper qualification when her name was placed on the roll, cannot be disfranchised by what has since taken place.

Herschell, in support of the rule.-The votes of both the married women were absolutely void. A married woman is not a "person" within the meaning of 32 & 33 Vict. c. 55. s. 1. Being married, her legal existence is merged in that of her husband. Since, therefore, the Act does not apply to married women, they are by the common law under two disqualifications as regards voting. First, that of sex; secondly, that arising from the fact that they have no separate status from that of their husbands. The first has been removed, but the second remains in full force.

COCKBURN, CJ.-I think the rule must be made absolute. In the case of one of these married women I think it is impossible to say that the vote is good ; and the other is probably bad. In the first case the woman was married when her name was placed on the burgess roll, and by the common law, the rights of a woman respecting any political or public office were upon her marriage merged in those of her husband. It was thought to be a hardship in the case of votes at municipal elections, that unmarried women were not entitled to such votes. Accordingly, by 32 & 33 Vict. c. 55, it was provided that in the acts relating to the municipal franchise wherever words occur which import the masculine gender, they shall be held to include females so far as concerns the right to vote. But this Act, of course, proceeded upon the assumption that the women entitled to vote would be women possessed of the necessary property qualification, and paying rates. I cannot believe that it was ever intended to alter the status of married women.

The only

way in which it can be argued that such change was contemplated is by suggesting that the Married Women's Property Act, 1870, which gave married women certain privileges with regard to property and contracts, has placed them in the same category with unmarried women, in regard to the right to vote. But this Act was passed with a different object, and I cannot suppose that it was ever intended by a sidewind to confer public and political rights of so important a nature.

The case of the other married woman is different. At the time when her name was put on the burgess list she was unmarried, and therefore entitled to vote. Shortly before the election she marries, and her status thereby becomes changed. It is said that when a voter's name has once been placed on the roll, he cannot, so long as his name appears there, lose his right by anything which subsequently takes place. No doubt this is so, but I cannot but entertain serious doubt whether this rule applies to such an alteration of status as is caused by a woman's marriage. It is, however, unnecessary to decide this point, as the case is, prima facie, one for enquiry, and the rule must be made absolute.

MELLOR, J.-I am of the same opinion. In Bright on the Law of Husband and Wife, vol. 1, p. 1, it is laid down that marriage, as far as the wife is concerned, is a disqualification, so that with regard to the right to vote, her existence is, as it were, merged in that of her husband. This rule still prevails, with certain exceptions which have been introduced by The Married Women's Property Act, 1870; but this Act was not intended to affect the right to vote. With regard to the case of the woman who married after her name had been placed on the roll, there can be no doubt that her name was properly placed there in the first instance. But I think that the Act 32 & 33 Vict. c. 55, was only intended to remove the disqualification by virtue of sex, and was not intended to affect the relation of husband and wife. It would therefore seem to follow, that the qualification of a single woman is extinguished by her marriage.

HANNEN, J.--I am of the same opinion. I think that The Married Women's Pro