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365 Law of Costs.-- Points in Equity Practice.-On Conditions of Sale. LAW OF COSTS.
not opposed it, the costs of the application
would have been costs in the cause, and the OP OPPOSING MOTION FOR ISJUNCTION IN defendant, on giving the discovery, would have BILL FOR DISCOVERY.
been allowed full costs of suit, including the This was a bill filed by the defendant in an
motion. I shall, under the circumstances, action at law, for a discovery in aid of his defence of the action, and to restrain the further give no costs of the motion on either side, but
ihe defendant is entitled to the remaining costs proceedings therein until such discovery.
of suit. But if an injunction to stay proceedThe plaintiff at law resisted the injunction, and filed affidavits in opposition to the motion, ings at law should hereafter be opposed, and
the defendant should fail, he must pay the · but the Court granted the application, reserv
costs.” Lovell v. Galloway, 19 Bear. 643. ing the costs. A full answer had been filed, and he now moved to dissolve the injunction,
POINTS IN EQUITY PRACTICE. . and asked for his costs of suit, including those of the motion for the injunction and of the
DECLARATION ON ADJOURNED SUMNONS present application.
FROM CHAMBERS. The Master of the Rolls said :—"This was a On an adjourned summons from Chambers, bill filed by the defendant in an action at law for the Master of the Rolls refused to make a dea discorery simply in aid of his defence to the claration that a deed appointing a guardian to action at law. When the defendant at law (the an infant, was good, but directed a certificate plaintiff in equity) had obtained the discovery, to the same effect to be drawn up by the chief the defendant in equity (the plaintiff at law) clerk for his approval. Morgan v. Hatchell, 19 moved to dissolve the injunction and to be paid Beav. 86. his taxed costs of the suit, including an appli. cation for an injunction to stay proceedings at REMOVAL MATTER
FROM MASTER'S law till the answer was put in. The plaintiff
OFFICE TO JUDGE'S CHAMBERS. in equity did not dispute his right to the costs
! An application to remove a matter of great of suit in a bill of discovery, and was willing intricacy from the Master's office into Judge's to pay them, except the costs of the motion for Chambers, was refused with costs. Saward s. the injunction, which according to the new M'Donnell, 19 Beav. 528. practice, was a special application, and which
MOTION TO REVIVE ATTACHMENT AFTER the defendant in equity improperly defended.
SEQUESTRATION. The case is reported in 17 Beav. 7, and I there
A sequestration proved only partially sucheld that on verifying his case by affidavit, the cessful: Held, that a motion to revive an at- plaintiff
' in equity is entitled to an injunction to tachment cannot be made exparte, but that -stay proceedings at law till a full answer to the notice must be given. Knott v. Currie, 19 bill is put in, and that the defendant in equity Beav. 470. could not be permitted, by affidavit, to say that the plaintiff had no case, and so refuse him a ON CONDITIONS OF SALE. discovery. The meaning of the Statute was · not to assimilate such injunctions to the pre
BY MR. R. CAPARN, OF HOLBEACH. cise practice that prevailed as to special in
Read at the Meeting at Birmingham. junctions generally; and the qualifying words The subject of Conditions of Sale of Real ‘80 far as the nature of the case will admit,' Estate is one that has for some time engaged introduced into the clause, have reference to
the anxious attention of Solicitors, as being in this very point, and show that it was not in- no fixed rule of law, and scarcely affected or
a most unsatisfactory position. Regulated by tended to deprive the defendant at law of the controlled by any principle of equity, they are benefit of the discovery which he formerly had. too often the source of dissatisfaction in the “I reserved the costs of that motion, and I
minds of clients with their Solicitors, fruitful have since consulted the other branches of the best, the means of throwing unforeseen and
springs of angry, unprofitable litigation, or, at Court, and the unanimous opinion of all the even unascertainable expenses upon pure Judges has been given, concurring in my view chasers; and too often the unfair medium of of the construction of the Statute. I ought to securing to the vendor's Solicitor the business have made the defendant, at the time, pay the former shall prepare the conveyance, although
of the purchaser, by the stipulation that the costs of the affidavits, in opposition to the mo. at the expense of the latter. tion for the injunction. If the defendant had Frequently have inchoate discussions been
On Conditions of Sale.
361 had on this matter among individual Solicitors | deeds, awards, or other documents, not in his and in Law Societies, I speak more particu- possession, shall be deemed and taken to be larly of the Lincolnshire Law Society—but correct, and the production by the vendor of little or no beneficial result has been come to, any deeds or other documents, or of any abmainly from the discursive way in which the stract of any deeds or other documents which topic has been generally introduced, as by the he is not bound to produce, according to these complaint against some one particular and Conditions, shall not be deemed or taken as a special condition, which probably the party waiver of any of these Conditions. who prepared it was presently ready to defend, “If any documents in the vendor's possesalthough he in his turn might be ready to sion shall relate to property bought by several complain of some other, instead of the whole purchasers, and all the lots to which the same question of the object and equitable limitation may relate shall be sold now or hereafter, then of Conditions being considered by some exten- such documents, on the completion of the presive Society or Committee, apart from any sent or future sales of all the lots to which the specific complaint.
same may relate, shall be delivered to the purThat Conditions of Saleare stillvery frequently chaser paying the greatest amount of purchaseunfair to the purchaser, who cannot possibly money, upon his entering into covenants, at the know the state of the vendor's title, and the ex- costs and charges of any owner or purchaser pense which he (the purchaser) may have to of property to which the same may relate, at incur if he buys, and stretched beyond their the expense of such owner or purchaser for legitimate province, I believe will not be production of such documents, and delivering doubted; but, lest this should be so, I will give copies or extracts thereof. Should any diffian instance or two which have come before culty arise as to such largest purchaser, the demy notice within the last two or three years. cision thereon of the vendor shall be final. In
On one sale of upwards of 60 lots, held un- case and whilst any lot remain unsold, the doder a great variety of titles, the following were cuments to which the same may relate shall a part of the Conditions :
remain with the vendor ; but he shall, at the All official and attested or other copies of, expense of any purchaser, enter into covenants and extracts from, any Act of Parliament, for production of the same, and for furnishing award, will, admission, deed, document, or pro- copies or extracts thereof, but determinable ceedings, whether upon record or otherwise, thereafter on delivery thereof to any purchaser and all letters of administration, and all certifi- or owner of property to which the same may cates of baptism, marriage, burial, and other relate, on procuring from him, on request, a certificates or documents, and statutory declara- similar covenant. Whilst any documents retions, copies of, or extracts from, parochial or main in the vendor's possession he will, at the other registers, and all evidence as to pedigree, request, costs, and charges of any purchaser, heirship, births, marriages, deaths, or intestacy, produce, and also furnish, copies and extracts or of identity, whether required for the purpose of the same. The delay of delivering or proof verifying the abstract, or for any other pur- curing covenants for title, consistently with pose, and of any deeds of covenant for the pro- these Conditions, shall not retard the compleduction of the same, and all assignments or tion of any contract, but every purchaser shall, surrenders of any outstanding, and yet unsatis- in such case, be satisfied with the engagement fied, term or terms, and reconveyances of any by this condition, that the vendor willi herelegal or equitable estate or estates or interests after, at such purchaser's expense, procure for shall be made, taken, and obtained by the ven- him a covenant for production, if required, dor's Solicitors, at the expense of the party re- when he may be entitled thereto, and, in the quiring the same respectively. And all expenses meantime, that the vendor will, upon the reattending the examination or comparison of the quest, and at the costs and charges of such abstracts with the title-deeds and other docu- purchaser, produce and furnish copies and exments, wheresoever the said deeds or documents tracts of the documents retained. may be, and of journeys taken for that purpose, "The vendor shall not be required to furnish shall be borne and paid by the purchaser or any evidence of the identity of any lot or lots, purchasers of the lot or lots in respect of which with the description in any of the deeds or do such expenses shall be incurred.
cuments of title, or in any schedule thereto, “The vendor shall not be required to produce or to reconcile the difference in any such deto any purchaser or purchasers, or his, her, or scriptions, whether in abuttals, admeasurement, their Solicitor, any deed or other document not or otherwise, other than by some statutory dein his custody or control, nor to furnish any claration of any respectable person who has covenant for the production of any deeds or been acquainted with the property for 20 years, other documents not in his custody, nor any that the reputed, or apparent possession, or abstract of any such deed or other document, enjoyment, has during that period been consignotwithstanding the same may be mentioned, tent with the title shown by the abstract, so far or referred to, or covenanted, to be produced as is shown, nor with respect to any lot or lots in or by any deed or document now in his shall the vendor be required to distinguish hands, nor shall he be obliged to point out freehold from copyhold." where any such deed or document of title not Now it will be evident what heavy costs,
in his possession is. And all abstracts, ex- properly and fairly chargeable on the vendor, tracts, or copies produced by the vendor of the first of these conditions seeks to throw
On Conditions of Sale. upon the purchaser, and the extent of which, Woods and Forests to the purchaser? If there at the time of sale, the purchaser nas no possi. be a proper officer for that purpose-an officer ble means of gaining the slightest idea of, whose duty it is to prepare them-then, at while the vendor's Solicitor either is, or ought least, he, being a salaried officer, can have no to be, fully aware of them. Then here, also, right to charge the purchaser for the deed. is the stipulation which ought to be most But, in fact, the practice complained of, is strenuously decried, that documents shall be adopted by the Solicitor of the Land Revenue. prepared for, and at the expense of, the purchaser by the vendor's Solicitor, thus holding A draft conveyance, a printed form with par. out an inducement to parties to become the ticulars filled up, was sent for my perusal from clients of the vendor's Solicitor, under the the “Office of Woods.” The engrossment penalty of increased expense by their own Soli- was then sent from the same office to be signed citor perusing and approving the docunents by the purchaser, and returned preparatory to on their behalf. See, also, in the next of these the settlement. And the purchasers were put conditions, the extreme unfairness of providing to the unusual inconvenience and expense of that the vendor shall not produce, nor furnish paying the money into the Bank of England, covenants to produce, nor abstracts of any and exchanging the receipt for it for the condeed or document not in his custody, nor even veyance. be obliged to point out where any such deed With all deference, I would suggest that the or document is-amounting, in fact, to the first step hereto will be carefully to consider stipulation that the title, as set forth in the ab- what is the proper and legitimate object of stract of deeds or documents said not to be in Conditions of Sale of real estate, contradistinthe vendor's possession, shall be taken as cor- guished as they are from the Conditions of rect, unless after a search in the dark the pur- Sale of mere movables, and I am aware that chasers should happen to find documents con- here a large field is open for discussion. Still tradicting such title, or, in other words, that I believe that certain well-defined principles the abstracts, imperfect, it may be, shall con- may be laid down within which Conditions stitute not the index to, as it merely is, but the considered fair and reasonable by this Society title itself.
may be circumscribed, and beyond which very The next condition is, perhaps, of less im- special and intelligible reasons ought to be asportance, but still it is surely too much to signed for passing. expect that a purchaser, requiring a covenant It will at once, perhaps, be said, What are to produce the muniments of his title, should these principles? If you see them, define be satisfied to complete his purchase, and have them. This, perhaps, is more than I can do; only the guarantee of a Condition of Sale for but, impelled by the belief that there is here a their production until the vendor may think fit great disease in our professional constitution, to procure a covenant.
and that an effort of energy, perhaps, rather · Surely, also, seeing the difference in value than mental ability, is needed to apply a rebetween freehold and copyhold estates, amount- medy, I will venture, at least, to provoke dising, in cases of copyhold of manors with arbi-cussion upon it by submitting, with all defertrary fines, to fully one-fifth, the condition that ence, my own views upon the subject. the vendor shall not distinguish freehold froin The Conditions, then, upon which-putting copyhold is one far from fair and reasonable. myself in the position of a vendor's Solicitor
To these few examples, doubtless, the gen- I should deem it fair and right, as well having tlemen present could add numerous others, and regard to the interest of my own client, whose probably worse, and it was with no small in- sale might be injured, if not prevented by exdignation that at a sale of crown lands lately, traordinary stringent Conditions, as to the prinat which I was myself a purchaser, I found the ciple of honourable dealing between the vendor, following condition :
who knows the state of his evidence of title “Upon payment of the remainder of the with its defects (if any), of greater or less impurchase-money, on or before the said 10th day portance, and the possible purchaser, who must of October, 1855, the purchaser shall have the necessarily be, in a very great measure, if not lots conveyed to him or her in such form and altogether, ignorant upon the subject, I should manner as is prescribed on that behalf by the deem it my duty, in the first place, to provide Act or Acts of Parliament under which the sale for fair, unretractable bidding (if by auction), is made; the deeds for which purpose will be and a plain binding contract for the sale and prepared in the usual manner and form by the purchase of the estate, as if the title were marproper officer in the Land Revenue Depart. ketable and perfect, providing for the various ment, and the expense of such deeds to be steps towards completion to be taken within paid by the purchaser will not exceed the reasonably limited periods by the contracting sum of £5 158. 6d, when the purchase-money parties, subject to the usual penalties of the shall be under £500; £7 17s.6d. when under nullity of the step taken, or other penalty, in £1,000 ; and £10 10s, when above £1,000; case of not being taken in due time, and for the with an addition of about £l is, to £2 28. in fair, or, it may be, penal payment of compensaeach case for a plan."
tion, in the shape of interest, by the purchaser, Who, I would ask, is "the proper officer in if the completion were delayed. To these Í the Land Revenue Department" to prepare the would add a provision, now ordinary, though deed of conveyance from the Commissioners of extra--the requirement of the law of simple
On Conditions of Sale.--Manchester Law Association.
363 contract, that facts, &c., evidenced by recitals | MANCHESTER LAW ASSOCIATION. in deeds, &c., acted upon and dated 20 years ago, should be deemed sufficient, unless dis- The annual report of this society, which we proved; and a provision that any unwitting published last week, was followed by the usual mistake in description, quantity, &c., should dinner of the members under the presidency not invalidate the sale, but be matter of com- of William Beamont, Esq., of Warrington, the pensation by arbitration.
President for the year. He was supported on With these conditions, as between the vendor his right by J. Watts, Esq., mayor of Manwith a marketable title and a purchaser, I chester, and his left by Stephen Heelis, Esq., should think it my duty to be satisfied. Then mayor of Salford. The Vice-Presidents were comes the question of special circumstances, Messrs. L. Rushton, F. Beever, and J. Street; and the special conditions to meet them, and and there were also, as a deputation from the upon consideration whereof principle is too Liverpool Law Association, Mr Edward Banoften sacrificed to a short-sighted imagination ner, the President of that association, and Mr. of expediency, and attempts are made, and too W. Radcliffe, the Hon. Sécretary. often succeed, to the dissatisfaction of all par- After the customary loyal toasts, the Chairties—the injury especially of purchasers, and man rose to propose the toast of the evening, the opprobrium of the Profession-not only to “The Manchester Law Association." He dispose of the estate with an unmarketable and said there was no greater mistake than to supimperfect title, but to cast nearly the whole of pose that society was made for the lawyers exthe cost of patching and purging the holes and cept to suppose that society could do without blots in the title that is shown, upon the un- them. There were times when sense and sowary purchaser, who is, of course, in a very ciety seemed to part company, and when people much worse position to do so than the vendor. almost imagined that law was an excrescence
Many special Conditions are, of course, un- that might be lopped off without injury to the der special circumstances, admissible without body politic. In Jack Cade's insurrection, demur, and, indeed, so commonly adopted as Dick, his aide-de-camp, advised that the first scarcely to be called special; such are the Con- thing to be done was to kill all the lawyers, to ditions, as to covenants for title, in case of a which Cade replied that he intended to do no division of an estate, and against covenants for other, and then gave his reasons; and in the title, from bare trustees for sale, or mortgagees, great civil wars under Charles I. one writer and to these may frequently be added a condi- gravely ascribed the war and all its troubles to tion limiting the commencement of the title, the lawyers; but when the paroxysms were especially where the earlier title is one well over, reason resumed her sway, and people had known in the neighbourhood, and a saving of the sense to see that only despots could disexpense to both parties is the only real result pense with lawyers
. One of the few amusing of the limitation.
writers in a lawyer's library had described a Having thus endeavoured to sketch a short visit of Peter the Great, when he came to outline of simple and special, but admissible England, to Westminster Hall, where, seeing Conditions of Sale, and the principle that the lawyers' wigs like a sea of cauliflowers in a should guide in the settlement of them, as well kale yard, he asked who were the wearers. as given a few examples of such as I deem un
“Lawyers, the interpreter replied. fair and injurious alike to the vendor, whose
Lawyers ? that never can be true? sale flags from the fears of would-be purchasers, In all my realms I have but two, to the purchaser who knows not the expense And to those realms should Heaven once more and cost he is incurring to secure a desirable Be pleased their monarch to restore, estate, yet which, like gold, may be bought too One of these two-but what the Czar meantdear; and to the Profession, which incurs the Whether to raise him to preferment censure of both vendor and purchaser for their Or sus. per coll. was his intention, disappointment.
The interpreter forbore to mention." I would, in conclusion, suggest that a Com- But if society could not do without the lawmittee of this Society be forthwith formed, who yers, it was surely its interest to see that the should request Solicitors from all parts of the studies, education, station, and intelligence of country to forward to them the Conditions of those who administered the law, were suitable Sale, both general and special, commonly used to the responsible duties they had to perform. in their respective districts, with any remarks He was happy to say that, comparing the prethey may think fit to make on the subject, and sent time with the past, he took comfort for the who should, after mature consideration, recom- future. His (the Chairman's) memory was mend common and extraordinary Conditions able to go back to the time when an evening of Sale for adoption, and enunciate a principle, spent with a party of lawyers was an evening 80 far as past experience will warrant and ena- spent with a party of pedants, and smacked of ble them, for guidance in preparing special latitats, capiases, qui tams, et hoc genus omne. Conditions to meet special cases ; and, above His hearers would bear him witness that it was all, speaking plainly the opinion of this Society not so now. In those days hard words were upon the condition that the vendor's Solicitor sometimes used to frighten a refractory of. shall prepare deeds for and at the expense of fender. He well remembered an old attorney the purchaser, malgre the countenance of the at Congleton using this weapon towards a Solicitor to Land Revenue to such a practice. blacksmith, who, to the lawyer's annoyance,
· Manchester Law Association, had set up a smithy near his office, when, hav- the Ecclesiastical Courts, which were the relics ‘ing sent for the man and remonstrated with of a past age that had long survived the condihim without effect, he threatened him with a tion of the times that bad called them into being, special original testatum capias ad responden- and now required to be abolished. He had no dum, which frightened the man into a promise doubt that he should soon sce those Courts beto remove his smithy. He did not know gin to topple and fall, and he desired that this whether they could justify themselves in a society should use its influence to that end. similar proceeding, but he thought now-a-days. The advancement of the legal education, and it would not be approved.
status, and condition of the body of which they Some forward steps had latterly been made; were all members, was a question of the utmost but in order to accomplish any considerable importance. What guarantees so powerful as amount of good, they must unite together on those could a man give to society that he would all points; that was the most necessary. What discharge the important duties which were concould one individual do to raise the condition fided to members of the Legai Profession with of the Profession? They must unite and or faithfulness? Lawyers were often, of necesganise. They must have as many eyes as sity, entrusted with secrets wbich a man would "Argus; and more hands than Briareus. It divulge to no one else, and with the transaction was by union only that they could do anything. of business arrangements of the most imporIf they united they could effect a great deal. tant character; and it was to the honour of the They could bring to bear upon the public and body that the instances were very rare where the Legislature the opinion and sentiments of those confidences were betrayed. But it was those who were best acquainted with the sub-incumbent on them to endeavour to make the jects in which they were interested in relation Profession a more highly educated body, as to the laws, whether for the purposes of legal well as to give it a better status in society; not reform or otherwise. They had just been on their own account oply, but for the sake of singing our national anthem, “ God save the society, which would be the gainer also; in Queen;" but all those who joined in the words, fact, both the Profession and society would be “ May she defend our laws," did so, doubtless, gainers by such a result. The question which with the mental reservation that the laws so was now about to engage the notice of the to be defended were good laws. For himself, public-the education of lawyers—was one he held it to be a duty, so far as he was able, well worthy their highest attention. He conto get every bad law repealed or altered. He sidered that if the proposed Law University should not be backward in proclaiming his was established, they ought to have prelimiprotest against every law which he considered nary examinations for the different grades in ought to be abolished; and there were many the profession. He would have examinations in the Profession who, like himself, would not for apprentices at law-as they were termed be satisfied with our laws till they could see 500 years ago; and he would have degrees them divested of the idle framework which now conferred, of bachelors of laws, for those who encumbered them, and become-what the law were qualified for the Bar; then masters of ought to become-the perfection of reason, in-law, and then the still higher grade of doctors stead of a vehicle for the trickery and chicanery of law; and the progress from one rank to the which now so often disgraced it.
other should be open to the competition of all He would now allude to what such societies who chose to enter it. He would let every as the Law Association had already accom- one advance to the rank next above that he plished. If the Court of Chancery was now had attained, if he would qualify himself for it; better than it used to be, it was owing to the and he was convinced that the prospects in efforts their own and other kindred societies such a system would have a tendency to raise had used. If they had not accomplished all those who were engaged in this competition. they could desire, they might derive some sa- He would give to attorneys and solicitors the tisfaction from the recollection that in the days option of rising even to the Bench itself. In of the Commonwealth those Courts were too Scotland, the writer to the signet was capable strong even for the power of Oliver Cromwell, of being made a Judge; and why should not who promised that he would reform them attorneys in England aspire to the rank of thoroughly, but was afterwards compelled to Judges, at least in the County Courts? He admit that “the sons of Zeruiah prevailed and knew many men in the Profession who were were too strong for him." But the chancery quite as well qualified as those who now held system was now beginning to give way, and he those positions. While the Law University hoped that very shortly they should be able question was under discussion, he thought to get it into a shape that would still further they ought to make an effort to open the door lessen its abuses and corruptions.
for promotion from one step to another, till There was another thing which was a most the highest dignities should be within the crying evil, and which he hoped those associa- reach of those who chose to enter into the field. tions would take in hand-he alluded to the It would be to the interest of society, as well Ecclesiastical Courts. It had been said of as to their own. It would afford the best public societies, that they could neither be put guarantee society could have, that the members into the pillory, nor summoned to the Eccle- of the Profession would faithfully discharge siastical Courts. For himself, he would sooner their duties towards it; and he commended be put into the pillory than be summoned to that subject to the serious consideration of the