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Law of Costs. Points in Equity Practice.-On Conditions of Sale.
OF OPPOSING MOTION FOR INJUNCTION IN
BILL FOR DISCOVERY.
THIS was a bill filed by the defendant in an action at law, for a discovery in aid of his defence of the action, and to restrain the further proceedings therein until such discovery.
The plaintiff at law resisted the injunction, and filed affidavits in opposition to the motion, but the Court granted the application, reserving the costs. A full answer had been filed, and he now moved to dissolve the injunction, and asked for his costs of suit, including those of the motion for the injunction and of the present application.
not opposed it, the costs of the application would have been costs in the cause, and the defendant, on giving the discovery, would have been allowed full costs of suit, including the motion. I shall, under the circumstances, give no costs of the motion on either side, but the defendant is entitled to the remaining costs of suit. But if an injunction to stay proceedthe defendant should fail, he must pay the ings at law should hereafter be opposed, and costs." Lovell v. Galloway, 19 Beav. 643.
POINTS IN EQUITY PRACTICE.
DECLARATION ON ADJOURNED SUMMONS
On an adjourned summons from Chambers, the Master of the Rolls refused to make a declaration that a deed appointing a guardian to an infant, was good, but directed a certificate to the same effect to be drawn up by the chief clerk for his approval. Morgan v. Hatchell, 19 Beav. 86.
OF MATTER FROM MASTER'S OFFICE TO JUDGE'S CHAMBERS.
An application to remove a matter of great intricacy from the Master's office into Judge's Chambers, was refused with costs. Saward v. M'Donnell, 19 Beav. 528.
MOTION TO REVIVE ATTACHMENT AFTER
A sequestration proved only partially successful: Held, that a motion to revive an attachment cannot be made exparte, but that notice must be given. Knott v. Currie, 19 Beav. 470.
The Master of the Rolls said:-"This was a bill filed by the defendant in an action at law for a discovery simply in aid of his defence to the action at law. When the defendant at law (the plaintiff in equity) had obtained the discovery, the defendant in equity (the plaintiff at law) moved to dissolve the injunction and to be paid his taxed costs of the suit, including an appli-| cation for an injunction to stay proceedings at law till the answer was put in. The plaintiff in equity did not dispute his right to the costs of suit in a bill of discovery, and was willing to pay them, except the costs of the motion for the injunction, which according to the new practice, was a special application, and which the defendant in equity improperly defended. The case is reported in 17 Beav. 7, and I there held that on verifying his case by affidavit, the - plaintiff in equity is entitled to an injunction to -stay proceedings at law till a full answer to the bill is put in, and that the defendant in equity could not be permitted, by affidavit, to say that the plaintiff had no case, and so refuse him a discovery. The meaning of the Statute was - not to assimilate such injunctions to the precise practice that prevailed as to special inRead at the Meeting at Birmingham. junctions generally; and the qualifying words The subject of Conditions of Sale of Real 'so far as the nature of the case will admit,' Estate is one that has for some time engaged the anxious attention of Solicitors, as being in introduced into the clause, have reference to a most unsatisfactory position. Regulated by this very point, and show that it was not in-no fixed rule of law, and scarcely affected or tended to deprive the defendant at law of the benefit of the discovery which he formerly had. "I reserved the costs of that motion, and I have since consulted the other branches of the Court, and the unanimous opinion of all the Judges has been given, concurring in my view of the construction of the Statute. I ought to have made the defendant, at the time, pay the costs of the affidavits, in opposition to the motion for the injunction. If the defendant had
ON CONDITIONS OF SALE.
BY MR. R. CAPARN, OF HOLBEACH.
controlled by any principle of equity, they are too often the source of dissatisfaction in the minds of clients with their Solicitors, fruitful best, the means of throwing unforeseen and springs of angry, unprofitable litigation, or, at even unascertainable expenses upon purchasers; and too often the unfair medium of securing to the vendor's Solicitor the business former shall prepare the conveyance, although of the purchaser, by the stipulation that the at the expense of the latter.
Frequently have inchoate discussions been
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, although he in his turn might be ready to complain of some other, instead of the whole question of the object and equitable limitation of Conditions being considered by some extensive Society or Committee, apart from any specific complaint.
That Conditions of Sale are still very frequently unfair to the purchaser, who cannot possibly know the state of the vendor's title, and the expense which he (the purchaser) may have to incur if he buys, and stretched beyond their legitimate province, I believe will not be doubted; but, lest this should be so, I will give an instance or two which have come before my notice within the last two or three years. On one sale of upwards of 60 lots, held under a great variety of titles, the following were a part of the Conditions:
"All official and attested or other copies of, and extracts from, any Act of Parliament, award, will, admission, deed, document, or proceedings, whether upon record or otherwise, and all letters of administration, and all certificates of baptism, marriage, burial, and other certificates or documents, and statutory declarations, copies of, or extracts from, parochial or other registers, and all evidence as to pedigree, heirship, births, marriages, deaths, or intestacy, or of identity, whether required for the purpose of verifying the abstract, or for any other purpose, and of any deeds of covenant for the production of the same, and all assignments or surrenders of any outstanding, and yet unsatisfied, term or terms, and reconveyances of any legal or equitable estate or estates or interests shall be made, taken, and obtained by the vendor's Solicitors, at the expense of the party requiring the same respectively. And all expenses attending the examination or comparison of the abstracts with the title-deeds and other documents, wheresoever the said deeds or documents may be, and of journeys taken for that purpose, shall be borne and paid by the purchaser or purchasers of the lot or lots in respect of which such expenses shall be incurred.
"The vendor shall not be required to produce to any purchaser or purchasers, or his, her, or their Solicitor, any deed or other document not in his custody or control, nor to furnish any covenant for the production of any deeds or other documents not in his custody, nor any abstract of any such deed or other document, notwithstanding the same may be mentioned, or referred to, or covenanted, to be produced in or by any deed or document now in his hands, nor shall he be obliged to point out where any such deed or document of title not in his possession is. And all abstracts, extracts, or copies produced by the vendor of
"If any documents in the vendor's possession shall relate to property bought by several purchasers, and all the lots to which the same may relate shall be sold now or hereafter, then such documents, on the completion of the present or future sales of all the lots to which the same may relate, shall be delivered to the purchaser paying the greatest amount of purchasemoney, upon his entering into covenants, at the costs and charges of any owner or purchaser of property to which the same may relate, at the expense of such owner or purchaser for production of such documents, and delivering copies or extracts thereof. Should any difficulty arise as to such largest purchaser, the decision thereon of the vendor shall be final. case and whilst any lot remain unsold, the documents to which the same may relate shall remain with the vendor; but he shall, at the expense of any purchaser, enter into covenants for production of the same, and for furnishing copies or extracts thereof, but determinable thereafter on delivery thereof to any purchaser or owner of property to which the same may relate, on procuring from him, on request, a similar covenant. Whilst any documents remain in the vendor's possession he will, at the request, costs, and charges of any purchaser, produce, and also furnish, copies and extracts of the same. The delay of delivering or procuring covenants for title, consistently with these Conditions, shall not retard the completion of any contract, but every purchaser shall, in such case, be satisfied with the engagement by this condition, that the vendor will hereafter, at such purchaser's expense, procure for him a covenant for production, if required, when he may be entitled thereto, and, in the meantime, that the vendor will, upon the request, and at the costs and charges of such purchaser, produce and furnish copies and extracts of the documents retained.
"The vendor shall not be required to furnish any evidence of the identity of any lot or lots, with the description in any of the deeds or documents of title, or in any schedule thereto, or to reconcile the difference in any such descriptions, whether in abuttals, admeasurement, or otherwise, other than by some statutory declaration of any respectable person who has been acquainted with the property for 20 years, that the reputed, or apparent possession, or enjoyment, has during that period been consistent with the title shown by the abstract, so far as is shown, nor with respect to any lot or lots shall the vendor be required to distinguish freehold from copyhold."
Now it will be evident what heavy costs, properly and fairly chargeable on the vendor, the first of these conditions seeks to throw
upon the purchaser, and the extent of which, | Woods and Forests to the purchaser? If there
be a proper officer for that purpose-an officer whose duty it is to prepare them-then, at least, he, being a salaried officer, can have no right to charge the purchaser for the deed. But, in fact, the practice complained of, is adopted by the Solicitor of the Land Revenue.
A draft conveyance, a printed form with particulars filled up, was sent for my perusal from the "Office of Woods." The engrossment was then sent from the same office to be signed by the purchaser, and returned preparatory to the settlement. And the purchasers were put to the unusual inconvenience and expense of paying the money into the Bank of England, and exchanging the receipt for it for the conveyance.
at the time of sale, the purchaser has no possible means of gaining the slightest idea of, while the vendor's Solicitor either is, or ought to be, fully aware of them. Then here. also, is the stipulation which ought to be most strenuously decried, that documents shall be prepared for, and at the expense of, the purchaser by the vendor's Solicitor, thus holding out an inducement to parties to become the clients of the vendor's Solicitor, under the penalty of increased expense by their own Solicitor perusing and approving the documents on their behalf. See, also, in the next of these conditions, the extreme unfairness of providing that the vendor shall not produce, nor furnish covenants to produce, nor abstracts of any deed or document not in his custody, nor even 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 constitute not the index to, as it merely is, but the title itself.
The next condition is, perhaps, of less importance, but still it is surely too much to expect that a purchaser, requiring a covenant to produce the muniments of his title, should be satisfied to complete his purchase, and have only the guarantee of a Condition of Sale for their production until the vendor may think fit to procure a covenant.
may be laid down within which Conditions considered fair and reasonable by this Society may be circumscribed, and beyond which very special and intelligible reasons ought to be assigned for passing.
It will at once, perhaps, be said, What are these principles? If you see them, define them. This, perhaps, is more than I can do ; but, impelled by the belief that there is here a great disease in our professional constitution, 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 arbitrary fines, to fully one-fifth, the condition that the vendor shall not distinguish freehold from copyhold is one far from fair and reasonable.
To these few examples, doubtless, the gentlemen present could add numerous others, and probably worse, and it was with no small indignation that at a sale of crown lands lately, at which I was myself a purchaser, I found the following condition :
"Upon payment of the remainder of the purchase-money, on or before the said 10th day of October, 1855, the purchaser shall have the lots conveyed to him or her in such form and manner as is prescribed on that behalf by the -Act or Acts of Parliament under which the sale is made; the deeds for which purpose will be prepared in the usual manner and form by the proper officer in the Land Revenue Department, and the expense of such deeds to be paid by the purchaser will not exceed the sum of £5 158. 6d. when the purchase-money shall be under £500; £7 17s. 6d. when under £1,000; and £10 10s. when above £1,000; with an addition of about £1 1s. to £2 2s. in each case for a plan."
Who, I would ask, is "the proper officer in the Land Revenue Department" to prepare the deed of conveyance from the Commissioners of
cussion upon it by submitting, with all deference, my own views upon the subject.
The Conditions, then, upon which-putting myself in the position of a vendor's SolicitorI should deem it fair and right, as well having regard to the interest of my own client, whose sale might be injured, if not prevented by extraordinary stringent Conditions, as to the principle of honourable dealing between the vendor, who knows the state of his evidence of title with its defects (if any), of greater or less importance, and the possible purchaser, who must necessarily be, in a very great measure, if not altogether, ignorant upon the subject, I should deem it my duty, in the first place, to provide for fair, unretractable bidding (if by auction), and a plain binding contract for the sale and purchase of the estate, as if the title were marketable and perfect, providing for the various steps towards completion to be taken within reasonably limited periods by the contracting parties, subject to the usual penalties of the nullity of the step taken, or other penalty, in case of not being taken in due time, and for the fair, or, it may be, penal payment of compensation, in the shape of interest, by the purchaser, if the completion were delayed. To these I would add a provision, now ordinary, though extra-the requirement of the law of simple
On Conditions of Sale.-Manchester Law Association.
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 disproved; and a provision that any unwitting mistake in description, quantity, &c., should not invalidate the sale, but be matter of compensation by arbitration.
THE annual report of this society, which we published last week, was followed by the usual dinner of the members under the presidency of William Beamont, Esq., of Warrington, the President for the year. He was supported on his right by J. Watts, Esq., mayor of ManIchester, and his left by Stephen Heelis, Esq., mayor of Salford. The Vice-Presidents were Messrs. L. Rushton, F. Beever, and J. Street; and there were also, as a deputation from the Liverpool Law Association, Mr Edward Banner, the President of that association, and Mr. W. Radcliffe, the Hon. Secretary.
With these conditions, as between the vendor with a marketable title and a purchaser, should think it my duty to be satisfied. Then comes the question of special circumstances, and the special conditions to meet them, and upon consideration whereof principle is too often sacrificed, to a short-sighted imagination of expediency, and attempts are made, and too often succeed, to the dissatisfaction of all parties-the injury especially of purchasers, and the opprobrium of the Profession-not only to dispose of the estate with an unmarketable and imperfect title, but to cast nearly the whole of the cost of patching and purging the holes and blots in the title that is shown, upon the unwary purchaser, who is, of course, in a very much worse position to do so than the vendor. Many special Conditions are, of course, under special circumstances, admissible without demur, and, indeed, so commonly adopted as scarcely to be called special; such are the Conditions, as to covenants for title, in case of a division of an estate, and against covenants for title, from bare trustees for sale, or mortgagees, and to these may frequently be added a condition limiting the commencement of the title, especially where the earlier title is one well known in the neighbourhood, and a saving of expense to both parties is the only real result of the limitation.
Having thus endeavoured to sketch a short outline of simple and special, but admissible Conditions of Sale, and the principle that should guide in the settlement of them, as well as given a few examples of such as I deem unfair and injurious alike to the vendor, whose sale flags from the fears of would-be purchasers, to the purchaser who knows not the expense and cost he is incurring to secure a desirable estate, yet which, like gold, may be bought too dear; and to the Profession, which incurs the censure of both vendor and purchaser for their disappointment.
After the customary loyal toasts, the Chairman rose to propose the toast of the evening, "The Manchester Law Association." He said there was no greater mistake than to suppose that society was made for the lawyers except to suppose that society could do without them. There were times when sense and society seemed to part company, and when people almost imagined that law was an excrescence that might be lopped off without injury to the body politic. In Jack Cade's insurrection, Dick, his aide-de-camp, advised that the first thing to be done was to kill all the lawyers, to which Cade replied that he intended to do no other, and then gave his reasons; and in the great civil wars under Charles I. one writer gravely ascribed the war and all its troubles to the lawyers; but when the paroxysms were over, reason resumed her sway, and people had the sense to see that only despots could dispense with lawyers. One of the few amusing writers in a lawyer's library had described a visit of Peter the Great, when he came to England, to Westminster Hall, where, seeing the lawyers' wigs like a sea of cauliflowers in a kale yard, he asked who were the wearers.
"Lawyers, the interpreter replied.
Lawyers? that never can be true?
And to those realms should Heaven once more
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 so 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 ofshall 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,
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 special original testatum capias ad respondendum, which frightened the man into a promise to remove his smithy. He did not know whether they could justify themselves in a similar proceeding, but he thought now-a-days it would not be approved.
tion of the times that had called them into being, and now required to be abolished. He had no doubt that he should soon see those Courts begin to topple and fall, and he desired that this society should use its influence to that end.
The advancement of the legal education, and 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 which 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 only, 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 prelimi protest 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 which now so often disgraced it.
He would now allude to what such societies as the Law Association had already accomplished. If the Court of Chancery was now better than it used to be, it was owing to the efforts their own and other kindred societies had used. If they had not accomplished all they could desire, they might derive some satisfaction from the recollection that in the days of the Commonwealth those Courts were too strong even for the power of Oliver Cromwell, who promised that he would reform them thoroughly, but was afterwards compelled to admit that" the sons of Zeruiah prevailed and were too strong for him." But the chancery system was now beginning to give way, and he hoped that very shortly they should be able to get it into a shape that would still further lessen its abuses and corruptions.
of law; and the progress from one rank to the other should be open to the competition of all who chose to enter it. He would let every one advance to the rank next above that he had attained, if he would qualify himself for it; and he was convinced that the prospects in such a system would have a tendency to raise those who were engaged in this competition. He would give to attorneys and solicitors the option of rising even to the Bench itself. In Scotland, the writer to the signet was capable of being made a Judge; and why should not attorneys in England aspire to the rank of Judges, at least in the County Courts? He knew many men in the Profession who were quite as well qualified as those who now held those positions. While the Law University question was under discussion, he thought they ought to make an effort to open the door 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 into the pillory, nor summoned to the Ecclesiastical Courts. For himself, he would sooner be put into the pillory than be summoned to
guarantee society could have, that the members of the Profession would faithfully discharge their duties towards it; and he commended that subject to the serious consideration of the