« ElőzőTovább »
State of Law Reform.-New Statutes effecting Alterations in the Law. Affidavits as to important matters are lows that deponents must come to them. sometimes required from persons who are But it is the public who are really conunder no legal obligation to make them, cerned in the matter, and it is their interest and who are disinclined to go out of their and convenience, and not that of the soliway for the purpose. In such cases, the citors, which will suffer by the change. power which now exists, but which these clauses will take away, of bringing a Commissioner to take the deposition, may often be the means of securing valuable testimony which would otherwise be lost.
As a general rule, Commissioners are not to be found at their places of business after six o'clock in the evening. If these clauses should pass, they cannot take affidavits even at their own residences, although within the limits of their jurisdiction, after that hour, however urgent the occasion, or to whatever extent the convenience of deponents-in other words, the advantage of the public-may be promoted thereby.
Cases may readily be conceived, indeed they are of not unfrequent occurrence, in which all the members of a firm of bankers, merchants, or men of business, perhaps three, four, or five in number, have to join in one affidavit or answer. At present, one Commissioner may attend them at their own place of business, and administer the oath to them all, at one and the same time. If these clauses should pass, they must all leave their places of business, at whatever inconvenience, and resort to that of the Commissioner.
No evil or inconvenience in the existing system is alleged to justify the proposed change. If any should hereafter arise, it is in the power of the Lord Chancellor to remedy it by rule or order; but the proposed enactment would altogether deprive the Lord Chancellor of such corrective and remedial power.
An oath or affirmation can derive no greater sanctity, and can impose impose no weightier obligation on the conscience of the person taking it, from its being administered in one place of business or residence, rather than another. And if a Commissioner is a fit person to administer an oath in Fleet Street or Cheapside, he cannot be less fit to do so in Cornhill or Lombard Street. In all cases, at present, he must state in the Jurat the place where he actually exercises his power, so that it may at once appear whether he is or is not acting within the limits of his jurisdiction. To the solicitors themselves, who are Commissioners, the proposed enactment is entirely indifferent. If affidavits or declarations are necessary to be made, and they are not allowed to go to deponents, it fol
NEW STATUTES EFFECTING AL-
PURCHASERS' PROTECTION AGAINST JUDG-
18 VICT. c. 15.
THE preamble recites 1 & 2 Vict. c. 110; 2 & 3 Vict. c. 11; 3 & 4 Vict. c. 82 ; and 13 & 14 Vict. c. 43, s. 24.
Judgments of the Common Law Palatinate Courts of Lancaster and Durham, obtained before the coming into operation of 1 & 2 Vict. c. 110, and not registered under the same, shall not affect lands, &c., in the said counties, unless registered on or before November 1, 1855. The fee for entry of judgments shall be 28. 6d; s. 1.
The provisions of the 1 & 2 Vict. c. 110, ss. 18, 19, and 20, extended to the Common Law Palatinate Courts, and to the Equity Court of Durham; s. 2.
The provisions of 2 & 3 Vict. c. 11, ss. 3, 4, 5, and 7, and 3 & 4 Vict. c. 82, s. 2, extended to the Common Law and Equity Courts of the Counties Palatine; s. 3.
No judgment, &c. registered under the 3 & 4 Vict. c. 82, to affect lands, &c. as to purchasers, &c. until registered; s. 4.
Purchasers protected against judgments not re-registered; s. 5.
Provision for re-registration explained; s. 6.
Judgments of inferior Courts, when removed, shall be registered; s. 7.
Extinguished judgments not revived; s.
Duties of prothonotary. The fees for registration shall be 2s. 6d., for re-registration 1s., and for searches 18.; s. 9.
No order of Court of Bankruptcy to affect lands, &c., until registered; s. 10.
Legal estate vested in purchaser or mortgagee not to be taken in execution; s. 11.
Life annuities and rent-charges not to affect lands as to purchasers, &c., until memorandum left with senior Master; s. 12.
Searches may be made by parties themselves; s. 13.
Annuities or rent-charges given by will excepted from this Act; s. 14.
The following are the Title and Sections of the Act:
110, ss. 18, 19, and 20, and giving to certain rules of Courts of Common Law, and decrees and orders of Courts of Equity, the effect of judg An Act for the better Protection of Purchasers against Judgments, Crown Debts, Cases of ments in the Superior Courts of Common Law, Lis pendens, and Life Annuities or rentand constituting the persons therein mentioned judgment creditors, and giving to Courts of charges. [26th April, 1855.] Equity the powers by the same Act given to Whereas an Act of Parliament was passed the Judges of the said Superior Courts, and in the Session of the 1 & 2 Vict. c. 110, in- giving to the persons so constituted judgment tituled "An Act for abolishing Arrest on Mesne creditors as aforesaid such remedies as are Process in Civil Actions, except in certain therein mentioned, and authorising the regis Cases, for extending the Remedies of Credi- tration of such decrees, orders, and rules as tors against the Property of Debtors, and for aforesaid, and providing for the writs to be amending the Laws for the Relief of Insolvent sued out of Courts of Equity, shall extend and Debtors in England;" and another Act in the are applicable, mutatis mutandis, to the said Session of the 2 & 3 Vict. c. 11, intituled "An Counties Palatine and the Courts of Common Act for the better Protection of Purchasers Law thereof respectively, and to the Court of against Judgments, Crown Debts, Lis pendens, Chancery of the County Palatine of Durham, and Fiats in Bankruptcy;" and another Act within the limits of their respective jurisdicin the Session of the 3 & 4 Vict. c. 82, intituled tions, to the end that the same law in the re"An Act for further amending the Act for spects aforesaid may apply to the Courts of abolishing Arrest on Mesne Process in Civil the said Counties Palatine, and the decrees, Actions:" And whereas the provisions of the orders, judgments, and rules thereof, so far said Acts respecting judgments, decrees, orders, as relates to lands, tenements, and hereditaand rules, and Lis pendens, ought to include ments within the jurisdiction of such Courts and be applicable to the Counties Palatine of respectively, as under the previous Statutes Lancaster and Durham, and the Common Law and Equity Courts thereof respectively: And whereas an Act was passed in the Session of the 13 & 14 Vict. c. 43, s. 24, intituled "An Act to amend the Practice and Proceedings of the Court of Chancery of the County Palatine of Lancaster, by force whereof the said provisions do to some extent include and are applicable to the County Palatine of Lancaster, as far as regards the Court of Chancery thereof: Be it therefore enacted, as follows:
amended by this Act, will regulate the operation of judgments in the Superior Courts of Common Law: But no judgment, decree, order, or rule of any Court shall bind lands, tenements, and hereditaments in the said Counties Palatine respectively, as against purchasers, mortgagees, or creditors, unless and until such memorandum or minute thereof as hereinbefore is mentioned shall be left with the prothonotary of the Palatine Court in which are situated the lands, tenements, and hereditaments intended to be charged thereby.
1. Any judgment of the Court of Common Pleas of the County Palatine of Lancaster, or 3. The provisions contained in the 2 & 3 of the Court of Pleas of the County Palatine Vict. c. 11, ss. 3, 4, 5, and 7, and in the of Durham, obtained before the coming into 3 & 4 Vict. c. 82, s. 2, respecting the operation of the said Act of the Session of the particulars to be inserted in the register by 1 & 2 Vict. c. 110, and not already registered the Master, and respecting the re-registration in the said Courts respectively under the pro- of judgments, decrees, or orders, and rules, visions of the same Act, and which shall not and respecting the registration, and re-registrabe registered in the said Courts respectively tion of lis pendens, and respecting the protec under the same provisions as amended by this tion of purchasers, mortgagees, and creditors, Act, on or before the 1st day of November, as explained or amended by this Act, shall ex1855, shall not after that day affect any tend and are applicable, mutatis mutandis, to lands, tenements, or hereditaments in the said the Counties Palatine and the Courts of ComCounties Palatine respectively as to purchasers, mon Law and Courts of Chancery thereof remortgagees, or creditors, unless and until such spectively, within the limits of their respective memorandum or minute of such judgment as jurisdictions. is in the said Act prescribed shall be left with the prothonotary of the Court in which the judgment has been obtained, who shall forthwith enter the same in manner by the same Act as amended by this Act directed in regard to judgments thereby authorised to be registered, and shall be entitled for every such entry to the sum of 2s. 6d.; and the provision for re-registration, toties quoties, hereinafter mentioned, as explained by this Act, is hereby extended and applied, mutatis mutandis, to judgments registered under this present pro
2. And be it declared and enacted as follows: The provisions contained in the 1 & 2 Vict. c.
4. And whereas the protection afforded to purchasers, mortgagees, and creditors, by the said Act of the 3 & 4 Vict. c. 82, against judgments, decrees, orders, or rules not duly registered, any notice thereof notwithstanding, is confined to judgments, decrees, orders, or rules binding by virtue of the said Act of the 1 & 2 Vict. c. 110: And whereas the docket or register previously in use has been closed, and the said provision ought not to be so restricted: Be it therefore enacted, That no judgment, decree, order, or rule which might be registered under the said Act of the 1 & 2 Vict. c. 110, shall affect any lands, tenements, or hereditaments, at Law or in Equity, as to purchas
New Statutes effecting Alterations in the Law.
ers, mortgagees, or creditors, unless and until such a memorandum or minute as in the said Act in that behalf mentioned shall have been left with the proper officer of the proper Court, any notice of any such judgment, decree, order, or rule to any such purchaser, mortgagee, or creditor in anywise notwithstanding.
5. And whereas it is expedient that certain doubts which have arisen upon some of the provisions for the protection of purchasers against judgments in the said Acts contained should be removed: Be it therefore declared and enacted as follows: The provision contained in section 2 of the said Act of the 3 & 4 Vict. c. 82, extends and shall be deemed to extend as well to the Act therein referred to as to section 4 of the said Act of the 2 & 3 Vict. c. 11, as explained by this Act, so that notice of any judgment, decree, order, or rule, not duly re-registered, shall not avail against purchasers, mortgagees, or creditors, as to lands, tenements, or hereditaments.
Pleas of Lancaster respectively, and the proviso at the end of the said section 22, restricting the operation of the same is hereby repealed.
8. Nothing herein contained shall extend to revive or restore any judgment which shall be extinguished or barred, or to affect or prejudice any such judgment, or any decree, order, or rule, as between the parties thereto, or their representatives, or those deriving as volunteers under them.
9. For the purposes of any registration or re-registration to be made in pursuance of this Act in either of the said Counties Palatine, all such acts and things as under the provisions of the said several Acts of the reign of her Majesty ought to be done by or left with the Senior Master of the Court of Common Pleas at Westminster shall be done by or left with the prothonotary or deputy prothonotary of the Court of Common Pleas of the County Palatine of Lancaster, or of the Court of Pleas of the County Palatine of Durham, as the case 6. Where by the said Act of the 2 & 3 Vict. may require, or such other officer (if any) of c. 11, re-registry of judgments, decrees, orders, the same Courts respectively as may for the or rules is required within such period of five time being have been appointed by the same years as is therein-mentioned, in order to bind Courts respectively, for the purpose of enterpurchasers, mortgagees, and creditors, it shall ing the judgments thereof respectively, under be deemed sufficient to bind such purchasers, the provisions of the said Act of the 1 & 2 Vict. mortgagees, and creditors if such a memoran- c. 110; and the said prothonotary, deputy produm or minute as was required in the first in-thonotary, or other officer as aforesaid, shall be stance is again left with the senior Master of entitled to the sum of 2s. 6d., and no more, the Common Pleas within five years before the for the duties to be performed on every regisexecution of the conveyance, settlement, mort-tration, and the sum of 18. only for re-registragage, lease, or other deed or instrument vest- tion; and all persons shall be at liberty to ing or transferring the legal or equitable right, search all or any of the books kept in pursutitle, estate, or interest, in or to any such pur-ance of any of the foregoing provisions of this chaser or mortgagee for valuable consideration, Act in each Court, for the sum of 1s. or as to creditors within five years before the right of such creditors accrued, as directed by the said last-mentioned Act, although more than five years shall have expired by effluxion of time since the last previous registration before such last-mentioned memorandum or minute was left, and so toties quoties upon every re-registry.
10. And whereas by the section numbered 123 of the Bankrupt Law Consolidation Act, 1849, when any person admits (in manner therein mentioned) that he is indebted to a bankrupt, it is enacted that every order of the Court of Bankruptcy for the payment by such person of the amount so admitted, and costs (if any), shall have the effect of a judgment in 7. Where by the section 22 of the said Act the said Superior Courts, and may be enforced of the 1 & 2 Vict. c. 110, power is given to re- accordingly, and by the section numbered 249 move judgments, rules, or orders obtained in of the same Act it is enacted that the said or made by certain Inferior Courts into the said Court may in all matters before it award costs, Superior Courts, or into the Court of Common and that the like remedies may be had upon an Pleas of Lancaster, as the case may be, no such order of the said Court for costs as upon a judgment, rule, or order which has already rule of any of the said Superior Courts for been or hereafter shall be so removed shall costs, but the said Act does not direct the rebind any lands, tenements, or hereditaments as gistration of any such order as aforesaid: Be to purchasers, mortgagees, or creditors, unless it therefore enacted as follows: No such order and until after such removal it shall be re- of the Court of Bankruptcy for payment of gistered, and, if necessary, re-registered, in money or of costs as aforesaid shall affect any like manner as in order to bind such purchas- lands, tenements, or hereditaments as to purers, mortgagees, or creditors it must have been chasers, mortgagees, or creditors, unless and if originally entered up in one of the said Su- until it shall be registered, and if necessary reperior Courts, or in the said Court of Common registered, in like manner as in order to bind Pleas of Lancaster, as the case may be; but such purchasers, mortgagees, or creditors it from and after the passing of this Act every must have been if it had originally been a such judgment, rule, or order so registered, and judgment or rule obtained or entered up in where necessary re-registered, shall be binding one of the said Superior Courts or in the said in like manner, but not further or otherwise, Palatine Courts respectively, any notice of any as other judgments, rules, or orders of the said such order to any such purchaser, mortgagee, Superior Courts, or of the said Court of Common or creditor in anywise notwithstanding.
13. The searches of the several registers, by the said recited Acts or by this Act authorised to be made for the sum of 1s., may be made by the parties themselves, under proper regulations in the office, and the sum of 18. only shall be payable on one search, although more names than one shall be searched for, where such names relate to the same purchase, mortgage, or other transaction.
11. And whereas great delay and expense forthwith enter the particulars aforesaid in a are occasioned upon purchases and mortgages book in alphabetical order by the name of the of lands in consequence of judgments against person whose estate is intended to be affected mortgagees and Crown debts and liabilities to by the annuity or rent-charge, together with the Crown of mortgagees continuing to bind the year and the day of the month when every lands, although the mortgagees have been bond such memorandum or minute is so left with fide paid off, and the lands have been actually him, and he shall be entitled for every such conveyed to purchasers, or to other mort- entry to the sum of 2s. 6d., and all persons gagees: For remedy whereof, be it enacted as shall be at liberty to search the same book, tofollows: Where any legal or equitable estate gether with the other books or registers in the or interest or any disposing power in or over office, on payment of the sum of 1s. any lands, tenements, or hereditaments shall, under any conveyance or other instrument executed after the passing of this Act, become vested in any person as a purchaser or mortgagee for valuable consideration, such lands, tenements, or hereditaments shall not be taken in execution under any writ of elegit, or other writ of execution, to be sued upon any judg. ment, or any decree, order, or rule against any mortgagee or mortgagees thereof, who shall have been paid off prior to or at the time of the execution of such conveyance, nor shall any such judgment, decree, order, or rule, or the money thereby secured, be a charge upon such lands, tenements, or hereditaments so vested in purchasers or mortgagees, nor shall such lands, tenements, or hereditaments so vested in purchasers or mortgagees be extended or taken in execution, or rendered liable under any writ of extent or writ of execution or other process issued by or on behalf of her Majesty, her heirs or successors, in respect of any judgment, Statute, or recognizance obtained against or entered into by, or inquisition found against, or obligation or specialty made by, or acceptance of office by any mortgagee or mortgagees, whereby he or they hath or have become or shall become a debtor or accountant, or debtors or accountants to the Crown, where such mortgagee or mortgagees shall have been paid off prior to or at the time of the execution of such conveyance as aforesaid.
14. The provisions of this Act shall not extend to require the registry of annuities or rent-charges given by will.
EXTENSION OF THE CHARITABLE
[Concluded from page 477.]
18. No order for the appointment or removal of trustees of any charity, or for establishing any scheme for the administration or for apportioning the benefits thereof, shall be made by the board until after such public notices shall have been given of the proposal to make the same as the board may consider expedient for insuring publicity in each parish or district in which the charity is or ought to be applied, or among all persons interested therein, nor until after the expiration of one month from the publication of such notice; and every such notice shall contain (so far as conveniently may be) sufficient particulars of the proposed order to show the objects thereof, and shall prescribe a time within which any objections thereto may be stated or transmitted to the board.
12. And whereas by reason of the repeal in the last Session of Parliament of the Act of the 53 Geo. 3, c. 141, requiring the enrolment, of life annuities or rent-charges, purchasers are no longer enabled to ascertain by search what life annuities or rent-charges may have been granted by their vendors or others: Be it therefore enacted by the authority aforesaid as follows: Any annuity or rent-charge granted after the passing of this Act, otherwise than by marriage settlement, for one or more life or lives, or for any term of years or greater estate determinable on one or more life or lives, shall not affect any lands, tenements, or hereditaments as to purchasers, mortgagees, or creditors, 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 date of the deed, bond, instrument, or assurance whereby the annuity or rent-charge is granted, and the annual sum or sums to be paid, shall be left with the senior Master of the Court of 20. The Attorney-General, or any trustee or Common Pleas at Westminster, who shall person administering or interested or claiming
19. All objections which may be made to any proposed order shall be considered by the board, who may suspend the making thereof for further inquiry or may modify the same as may be found expedient; and a copy of every such order when made shall, in the case of any local charity, be deposited for the space of one month in some convenient place within the parish or one of the parishes or the district in which the charity is applicable, and also be open to inspection at the office of the Commissioners, and such publicity shall be given thereto among all persons interested in the charity as the Board shall consider expedient; or if the charity be not local then a copy of such order shall be open to inspection at the office of the Commissioners, and public notice thereof shall be given in such manner as to the board shall seem fit.
Extension of the Charitable Trusts' Act.
and to order that any such real or personal estate shall be vested in or shall be transferred or paid to such trustees, or to the official trustees of charity lands or charitable funds respectively; and any order for vesting any real estate in such trustees or trustee shall be effectual without assurance; and any order for vesting any stock in the public funds or any stock or shares in any public company in the newly appointed trustees, or in the official trustees of charitable funds, may also entitle them to call for a transfer of such stock or shares respectively; and any real or personal estate of which any such corporation or any members thereof shall not be divested, but of which new managing trustees shall be appointed, shall be held upon trust to be disposed of according to the direction of such managing trustees.
to be interested in any charity, the subject of any order of the board made under the foregoing powers, and not being an order for vesting any real or personal estate of the charity in the trustees thereof, or in the official trustee of charity lands or charitable funds, or two inhabitants of any place within which the charity shall be applicable, or any person aggrieved by the same order, may within three months after the publication thereof, but not afterwards, present a petition to the Court of Chancery, in a summary way, appealing against such order and praying such relief as the case may require; and the Court, upon the hearing of such petition, may confirm, vary, reverse, or annul the order appealed against, or remit such order to the board for reconsideration, with or without any declaration in relation thereto, or may make any substitutive or other order in relation to the matter of the appeal, and respecting the costs, charges, or expenses incident thereto, as to the Court may seem just; and the Court, before hearing such petition or during the proceedings thereon, may require from the board the reasons for any order made by them; but no such petition of appeal shall be presented by any person, other than the Attorney-General, until written notice of the intention to present the same shall have been delivered to the Commissioners at their office, under the hand of the appellant or his agent, by the space of 21 days at the least previously. 21. The Attorney-General, if he think fit, may appear ex officio as the respondent upon any such appeal not made by himself, and where the Attorney-General shall be the appellant, and in any other case in which he 24. The managing trustees of every charity shall not think fit to appear as the respondent shall have at law and in equity power to grant the secretary of the Commissioners or any all such leases or tenancies of land belonging person appointed by them may, by their autho-thereto, and vested in the official trustee of rity, appear as the respondent; and all such charity lands, as they would have power to costs, charges, and expenses of the Attorney-grant in the due administration of the charity General or of the secretary or nominee of the if the same land were legally vested in themCommissioners, as the Court may direct to be paid, shall be provided and paid out of the property or income of the charity, or both, as the Court may direct.
22. Where any municipal corporation in England or Wales not named in Schedule (A.) or Schedule (B.) of the Act of the 5 & 6 Wm. 4, c. 76, "For the Regulation of Municipal Corporations," or any of the members of such corporation in his or their corporate capacity, shall be seised or possessed either solely or together with any person or persons elected by such corporation or by any particular member or class of members of such corporation of any real or personal estate wholly or partly upon any charitable trusts, and where any corporation sole or aggregate shall be so seised or possessed or shall have the management of any real or personal property of any charity, and shall also be recipients of the benefit thereof, it shall be lawful for the Court of Chancery, upon the petition of any person authorised by the board, or of the Attorney-General, to appoint trustees for the management of the charty, or of any real or personal estate thereof,
23. The secretary for the time being of the board shall be a corporation sole by the name of "The Official Trustee of Charity Lands," for taking and holding charity lands, and by that name, (instead of the name of "Treasurer of Public Charities,") shall have perpetual succession; and all land, or estates or interests in land, now vested in the "Treasurer of Public Charities" by that name, shall become, upon the passing of this Act, and by virtue thereof, vested in like manner, and upon the same trusts, in "The Official Trustee of Charity Lands," and all provisions of the principal Act which have reference to the Treasurer of Public Charities shall operate as if the name of the "Official Trustee of Charity Lands" had been used therein instead of the name of "Treasurer of Public Charities."
selves; and all covenants, conditions, and remedies contained in or incident to any lease or tenancy so granted shall be enforceable by and against the trustees or persons acting in the administration of the charity for the time being, and their alienees or assigns, in like manner as if such lands had been legally vested in the trustees granting such lease at the time of the execution thereof, and had legally remained in or had devolved to such trustees or administrators for the time being, their alienees or assigns, subject to the same lease or tenancy.
25. The Lord Chancellor may from time to time by writing under his hand appoint any persons to be the official trustees of charitable funds, and remove any such trustees, and every such appointment or removal shall be published in the London Gazette.
26. Such trustees to have perpetual succession, and may hold funds in that name.
27. All stock in the public funds vested in the joint names of Henry Morgan Vane, Thos. Hare, and Walker Skirrow, Esquires, the present official trustees of charitable funds, shall upon the passing of this Act be transferred by