20 20 Analytical Digest of Cases: County Court Cases. Case cited in the judgment: Regina v. Bolton, 1 her life. And D., on the death of W., accepted question must be open to the Superior Courts the bequest, and entered into possession, and on motion for a prohibition; and, on declaraenjoyed the aforesaid freehold and personal tion in prohibition, the question is one of fact, estate, and duly paid the weekly sum during to be decided by evidence. Thompson v. Inghis life; but since his death the defendant, ham, 14 Q. B. 710. although she has possessed herself of the hereditaments, goods, &c., of D., to an amount more than sufficient for the purpose, has refused to pay the plaintiff." It appeared, that, On the trial of a plaint for a trespass commit2. Corporeal hereditaments.-Jurisdiction.on the death of D., the freehold estates so ted by breaking the doors of certain rooms in bequeathed descended to his nephew and heirat-law, a minor. On motion for a prohibition, a cottage of the plaintiff, the plaintiff's case held, that the sum in question was claimed as a was, that he had let the defendant a portion debt, and, consequently, the County Court had only of the cottage, and had reserved to himself the rooms in which the trespass was comjurisdiction. But this Court ordered a certiomitted. The defendant's case was, that the rari to issue on account of the legal difficulties in the case. Longbottom v. Longbottom, 8 Exch. R. 203. 14. Set-off-Abandonment of excess.—The County Court has no jurisdiction to try a cause where the plaintiff, on the face of the summons, claims a sum exceeding 50%., although he thereby also proposes to allow a set-off to reduce it below that sum, where such set-off has not been allowed by the defendant before action, or admitted by him at the trial. In such case the County Court cannot obtain jurisdiction by the plaintiff's offering at the trial to abandon the excess above 501. Avards v. Rhodes, 8 Exch. R. 312. Cases cited in the judgment: Woodhams v. - TITLE IN QUESTION. plaintiff had let him the whole of the cottage: Held, that title to a corporeal hereditament was in dispute under the 58th section of the 9 & 10 Vict. c. 95, and that the County Court had no jurisdiction over the plaint. Chew v. Holroyd, 8 Exch. R. 249. 3. Action for use and occupation.-A plaint was brought in a County Court for use and mised the premises to defendant for a year, occupation. It appeared that the plaintiff defrom Michaelmas, 1850, and defendaut occuDefendant paid the rent to plaintiff, for the pied from that date up to the time of the trial. half year up to Lady Day, 1851, but refused to pay rent afterwards. It was proved that J., claiming to be plaintiff's landlord, had given plaintiff notice to quit, expiring at Lady Day, 1851, and ordered the defendant not to pay plaintiff rent after that day; and that plaintiff and C., a deceased occupant of the premises in question, had paid 10s. rent to J. Plaintiff contended that this payment was for a part only of the premises; defendant, that it was for the whole. Defendant offered to prove by declarations of C., the deceased tenant, that C. Decision of County Court Judge questioned paid the rent for the whole. The Judge rein prohibition. Declaration in prohibition, jected the evidence; but gave judgment for stating a plaint in the County Court prosecuted defendant, on the ground that plaintiff's title by one Batty for use and occupation of land by had expired as to part, and that the rent was Thompson (plaintiff in prohibition), who not apportionable. On appeal on a case statpeared and protested that the title to the said landing the above facts, was in question: averment, that in fact the title was in question in the action. Plea, that, when Thompson appeared and protested, Batty also appeared and protested, that the title was not in question, and required the defendant in prohibition, being judge, to hear and determine the action; that thereupon defendant, then being judge, did hear and consider the evidence, &c., of the plaintiff in prohibition in 4. Nuisance.-Action under 11 & 12 Vict. c. support of his said protest, and also the evi-123.-The amount paid for carrying into force dence, &c., of Batty on the other side, and having heard and considered, did adjudge that the title was not in question. ар Held, that, if such a plea admits the title to be in question, it is bad, for want of jurisdiction in the Judge, by Stat. 9 & 10 Vict. c. 95, s. 58; but, if it be taken as pleading the decision of a competent Court, it is equally bad; for, although the inferior Court must determine the point in the first instance, yet, there being no writ of error from the County Court, the Held, that the judgment could not be supported; that the evidence ought to have been received; and that, if, when received, it showed that the defence was bona fide, it would sufficiently raise a question of title to deprive the County Courts of jurisdiction under Stat. 9 & 10 Vict. c. 95, s. 58. Mountnoy v. Collier, 1 E. & B. 630. an order of two justices to abate a nuisance, under Stat. 11 & 12 Vict. c. 123, may, under the provisions of sect. 3, be recovered in the County Court from the owner of the premises where the nuisance existed, though title to land comes in question. Semble, that title comes in question if the party sued, as owner of land, denies that he is owner. Regina v. Harden, 2 E. & B. 188. And see Jurisdiction, 4, 11. The Legal Observer, DIGEST, AND JOURNAL OF. JURISPRUDENCE. SATURDAY, NOVEMBER 12, 1853. TRANSFER OF LAND. SUGGESTIONS OF THE CHANCERY COM MISSIONERS. different from any other species of acquisition, and that the number of incumbrances and charges affecting it, may be traced to the peculiar and distinctive nature of the property. However inconvenient it may be OUR readers have already been made to the owner, or injurious to the public, acquainted, somewhat in detail, with the that an estate should be burthened with schemes submitted to Parliament, by Mr. charges and trusts, it is the result of arDrummond and Mr. Vincent Scully, for rangements by which the exigencies of a facilitating the sale and purchase of land.1 complicated and artificial state of society It is quite true that neither of these plans have been, in most cases, effectually suphave obtained the sanction, or even the plied. Land has been made the subject of express approval, of either branch of the multiplied incumbrances because they can Legislature, and, considering the nature be made to attach to it more securely and and complexity of the subject with which appropriately than to any other known dethey propose to deal, and the manifestly scription of property; and to prohibit the inadequate nature of the machinery pro- owner of land from affecting it by charges vided, it can hardly be anticipated that or trusts, to operate immediately or proeither of those Bills, in its present shape, spectively, is to restrict him in the enjoywill be considered by Parliament to afford ment of his property. a satisfactory remedy for the evils com- It is to be feared, that these consideraplained of. Still, it is abundantly clear, tions, which are patent, and meet us at the that the difficulties which impede the trans- threshold, are often overlooked by those fer of land have begun to be strongly and who decry the present system as if it had generally felt by those most interested in been the result of some deep laid scheme of this description of property, and that many the territorial aristocracy and the lawyers, thoughtful and intelligent minds have ar- to prevent the alienation of landed property, rived at the conclusion, that these difficulties and who are fond of asserting that there is are, to some extent, created by the state of no conceivable reason why land should not the law, and may be diminished, though be transferred in the same manner and with not wholly removed, by legislative interfer- as little formality as a bale of cotton, or ence. It does not require a profound con1007. three per cent. consols!! sideration of the subject to understand, that much of the complexity which surrounds it, arises from the circumstance that land, from its permanent and immovable character, may be dealt with advantageously in a manner 1 Mr. Drummond's Bill is analysed in the last Volume of the Leg. Obs., p. 426, and Mr. Scully's, at p. 445. 2 The subject is ably treated in a pamphlet published by Saunders & Otley, at the close of the last year, and attributed to a "Right Hon." VOL. XLVII. No. 1,340. Our readers can readily appreciate the difference between those who would rudely overthrow a system based upon the necessities and the requirements of society, and those who would amend and improve it, and it is hardly necessary to add, that, in this instance, as in most others, our humble assistance and suggestions are intended for, and can only be useful to, those who desire to reform, and not to destroy. The legal difficulties which interfere with the alienation of land, are generally sup C 22 22 Transfer of Land-Suggestions of the Chancery Commissioners. posed by those who have addressed them-report in which this conclusion is arrived at selves especially to the consideration of the are as follow:5subject, to arise-1st, from the doctrine of "We think it most desirable that the printrusts; 2ndly, from the doctrine of express ciple of representation, now applied to personal and constructive notice; 3rdly, because a real representative of the owner cannot always be found upon the death of the owner of land; and lastly, because trustees in whom land is vested, have not power in all cases to act for the persons beneficially interested. property, should be universally applied to all cases of real property and to all cases of trust estate. Courts of Equity, in their great anxiety to do complete justice and afford complete protection to the cestui que trust, have created embarrassments and difficulties for third persons, who had claims to make and rights to The doctrine of trusts, which is supposed by, in many cases, materially prejudiced the assert against the trust estate, and have thereto interfere injuriously with the transfer of interests which they have sought to take under real property, is the rule laid down by their special protection." Courts of Equity, that a trust, properly created, attaches to the land intended to be After pointing out how heavily costs fall made subject to it, so as to convert all per-upon cestui que trusts, and observing that sons acquiring the legal interest (exclusive the burthen of costs does not seem "to of purchases for valuable consideration with- have been adequately appreciated in the out notice) into trustees.3 system adopted by Courts of Equity," the report proceeds as follows:— The doctrine of express and constructive notice is condemned; because Courts of Equity hold, that a purchaser with notice of a trust is bound by the trust, in the same manner as if it attached upon the land; and because a purchaser without any personal knowledge of a trust, is held to be bound by notice to his counsel, solicitor, or agent. So it has been holden, that what is sufficient to put a purchaser upon inquiry is good notice, and that if a purchaser knows the legal estate is in a third person, and not in the vendor at the time of the purchase, he is bound to take notice what the trust is; or if the purchaser has notice that part of the estate is in possession of a tenant, it amounts to constructive notice of a lease. "We think it most desirable that, in cases of trust property, the trustees should, for all purposes in equity, represent it in the same manner, and to the same extent, as executors or administrators do the estates entrusted to them, and as assignees do the estates of bankrupts and insolvents. We also think, that a representative of the real estate of a deceased the same powers of representing and dealing should be provided, who should have with the real estate, as the executor or administrator has with the personal estate." person It will be observed, from the foregoing extract, that the report of the Chancery Commissioners suggests, that the person in whom the real estate is vested should be The inconvenience arising from the want considered for all purposes as entitled to of a real representative, in the event of the represent and act for those beneficially indeath of a person to whom the land had terested in land, to avoid the inconvenience been transferred, is considered by many to expense arising from the operation of be the monster evil which at present fetters the rule requiring all the cestui que trusts the transfer of land. It is attempted to be to be parties to a suit relating to the trust met, and a remedy suggested in both the property. and But the Commissioners have Bills submitted to Parliament during the stopped here, and have not very clearly last Session, and it is positively referred to pointed in what terms the legislative proin the recent report of the Chancery Com-visions should be framed by which their missioners, who have expressed a clear and recommendations to appoint a representaunqualified opinion, not only that a representative of the real estate of a deceased person should be provided, but also that the representative created should have the same power of dealing with real estate that an executor or administrator has with re spect to personalty. The passages in the 3 Sanders on Uses and Trusts, 5th ed., pp. 280, 388. See Cases of Constructive Notice, enumerated in Sugden on Vendors and Purchasers, ed. 1851, p. 602. tive of the real estate of a deceased person, and to confer on such person the authority to act for all parties interested, should be carried out. It may be admitted, that considerable progress has been made in ascertaining in what direction reform is needed, to facilitate the sale and purchase of land, and get rid of the existing difficulties which impede its transfer; but the machinery by which the improvement can be effected is 5 Report of Chancery Commissioners, pp. 15 & 16. Reduced Duty on Articles of Clerkship.—Consolidation of the Statutes. yet to be devised and approved by the Legislature. That the subject will be revived, and put in a train for early legislation, soon after the re-assembling of Parliament, there is good reason to believe, and there is no pending question, connected with the reform of the law, more important to the interests of the Legal Profession and the Public, and in reference to which it is more desirable that the former, at all events, should be prepared and well informed. The registration of assurances is now admitted on all hands to depend upon the measures to be adopted by the Legislature for facilitating the sale and transfer of real property, and may be justly regarded as, in every sense, a subordinate question.1 REDUCED DUTY ON ARTICLES OF INCREASE OF PROFESSION. PREMIUM. -EXAMINATION. 23 It will be recollected, also, that before the project was announced of reducing the duty, the Examiners had given notice, with the sanction of the Judges, of an Examination in Conveyancing and the Law of Real Property, as well as in Common and Statute Law and Equity and the Practice of the Courts. A due degree of strictness in these Examinations, not only into the practice, but the principles of all departments of the Law, and full inquiry into the conduct of the clerks (which the Rules of Court authorise and require), will secure the learning and respectability of the members of the Profession better than any pecuniary qualification. CONSOLIDATION OF THE STATUTES. MR. COODE'S REPORT. CONSIDERABLE delay has occurred in printing and publishing the Reports of the Commissioners on the Consolidation of the Statutes. The reports were laid on the table of the House of Lords, by the Lord Chancellor, in August last, and evince extraordinary diligence and research on the part of the Commissioners. The labours they have accomplished in the course of a few months have been most extensive, and the materials they have collected are exceedingly valuable, both to the Lawyer and WE are informed, that since the reduction of the Stamp Duty on Articles of Clerkship, which took place on the 4th August, a larger number of articles than usual has been registered at the Masters' Office. It must not, however, be supposed that the difference between 1201. and 801. has caused much, if any, increase. The explanation, we think, may be found in the fact, that the Chancellor of the Exchequer having, in the month of April last, an- the Legislator. nounced his intention of reducing the duty, many persons suspended the execution of their articles until the Act passed, or availed themselves of the privilege of stamping them within six months after their date. Thus, after the passing of the Act, on the 4th August, the number of registrations was naturally increased. Selections from some of these reports have been published in one of the Law Periodicals, but we have not seen any extracts from Mr. Coode's Report, which appears to us to deserve peculiar attention. In his remarks on the utility and necessity of consolidating the Statutes, we entirely concur; and, on the other hand, we think the utter On the effect of this reduction of duty, impracticability and palpable danger of any we shall have something to say hereafter; attempt at the codification of our elastic but for the present may observe, that it is, principles of Common Law are convincingly of course, quite in the power of the Attor- proved. We shall from time to time, as neys themselves to prevent the admission opportunity offers, go through these reinto the Profession of improper persons, ports of the Commissioners. And, for the who may be tempted by the reduction of present, we submit to our readers the fol the duty to offer themselves as articled lowing extracts from Mr. Coode's Introclerks. In fact, the heavy tax upon the ductory Observations. articles, which in many instances used to be Mr. Coode has submitted as his contriurged as a reason for taking a smaller pre-bution to the labours of the Commission for mium, need not now be so much regarded. Consolidating the Statute Law, the following papers : The evidence of Mr. Cookson, Mr. Field, Mr. Williams, and Mr. Bullar, before the Select Committee of the House of Commons, contained in the Report of 5th August, is highly important on this subject. 1. On the Collection of the Materials for Legislation or Consolidation, their Collation and Connexion ; With an Appendix, being a specimen of a Chronological Register of the Sta- comes to be applied. It is attacked, modified, tutes in force, their Duration, and In- overthrown, so soon as occasion demonstrates its further inapplicability. ter-operation. 2. On the Digestion of the Materials for Legislation and Consolidation; On their Analysis; On their Recomposition; On their Expression; With two Appendixes; The first,-being Suggestions as to the Preparation of Compilations of the Existing Law, to precede or accompany Bills in Parliament ; The second,-exemplifying the operation of Digesting, being a Digest of the Acts for the Relief of the Poor. 3. On Consolidation. 4. On Subsequent Legislation, with a view to preserve the order and consistency of the law after Consolidation. Mr. Coode observes, that the task of consolidation is simple in regard to the Statute Law, for so much of this as is of general importance is all contained within the limits of some 40 quarto volumes, and what is really in force constitutes but a very small part even of these. It is all already expressed in some terms, printed, and accessible in the very same letters to every man. However wide the differences in the interpretation that one man or another may put upon them, these terms themselves are still there in print, unchanged, and always producible to test the justness of every applied interpretation judicial or non-judicial. "To consolidate the Common Law then, is to change its present expansible character entirely, to render from the moment of that operation its interpretation and application a miserable construction of mere forms of words, instead of a development by induction, deduction, and analogy of all necessary consequences and all consistent inferences from principles manifest in known practice and decided cases, words. This would be, in fact not consolidabut as yet unrestricted by any fixed form of tion, but a most extensive and unprecedented exercise of legislative power,-one as yet never arrogated by the legislature itself. "What the legislature has done, and can always do beneficially, is merely to take from time to time out of the domain of the Common the application of another rule than that of the Law so much as appears practically to require Common Law. This is usually done with all possible safeguards against hasty and excessive encroachment on its principles. But being so done the Statutory rule which supersedes the Common Law, being limited by the terms in which it is expressed, is susceptible of reconstruction, translation, division, analysis, and words are, without danger, if proper care be recomposition, as all other intelligible forms of used, either of extending or contracting its sense or operation. And this, which is constantly done with manifest advantage, is understood in these papers to be the sole object at present of the process of consolidation; and accordingly the whole tenor of the observations how this statutory matter may be best reproin these papers is confined to the consideration duced in a new statutory form without change "It is widely wholly different with the Com- of its effect or extent, and without encroachmon Law, which consists in the principles ex-ment on the Common Law." emplified in and deducible from the free usage of the community, and includes all that prac- These papers stop short of the attempt tice can possibly develope or scientific reason to reduce the law into a systematic Code, consistently apply to all cases arising in the whole course of time. Its operation is exemplified in innumerable text books and reports of decisions; but its terms and limits are nowhere laid down authoritatively, except only so far as it is excluded by Statute. To fix the "No doubt, a nation in which one homoCommon Law definitively in the language of geneous Common Law, developed by its own this day, is to paralyze judicial interpretation, free usages in 1,400 years, administered unito arrest the expansion and application of its versally and consistently by one undivided doctrines to the course of events and the de- judicature, amended and expanded in all such veloping circumstances of successive times. a period by one undivided legislature, might, in The legislature itself in England has never at- some caprice or under some hallucination, retempted it. Declaratory acts which appear solve to have all the flexible and expansible sometimes to declare the effect of the Common principles of its Common Law fixed and Law, never in fact do more than include a doubt-cramped in the words and forms of a statute or ful, perhaps a new, case within its operation. code. But no such folly has ever yet, in fact, Authors, counsel, judges, sometimes attempt to possessed even a village, still less an empire define its limits; and some of them have, in thus happily circumstanced. The Roman some instances, done it with more or less suc-edicts and codes before Justinian, and his Dicess; but the greatest success in this way com- gest, and Codes, and Novels, were nothing of pels acquiescence in the definition only just so this kind. There was no Common Law in the long as the definition is found to be consistent multitudinous provinces of the Roman empire, with the facts and circumstances to which it and the Digest itself is but an undigested or even to advocate such an attempt. In truth, the writer does not consider the object to be at present either feasable or desirable. |