taker of the instrument is not acting in good faith if he shuts his eyes to the facts presented to him.

If this statement of the common-law doctrine is compared with the description of constructive notice in some of the equity cases above cited, it will be seen that the two are very similar, if not identical.

EXCEPTION FROM CONSTRUCTIVE NOTICE OF MORTGAGES TO TRUSTEES.

In the case of mortgages to trustees, there is an important exception to the doctrine of constructive notice being implied from facts which would put a reasonable man on inquiry, or imply knowledge of a trust. When trustees invest on mortgage, it is the settled practice to keep the trusts off the title, and take the mortgage to the trustees simply as advancing money on a joint account; and on the appointment of new trustees, to transfer by a separate transfer, with a recital that the transferees have become entitled in equity (see Davidson, 1861, vol. ii. part 2, pp. 51 and 805).

In the case of Re Harman and Uxbridge, etc., Rly. Co., 1883, 24 Ch. D. 720, the mortgage being taken to a single mortgagee, who had died bequeathing his property on trusts under which the widow became executor and trustee, she transferred the mortgage without any pecuniary consideration, and with the common recital that the transferees had become entitled in equity; on objection, on a subsequent sale, that there was a trust, Pearson, J., dismissed the summons, saying:

Every one knows that when in a mortgage deed the mortgage money is stated to belong to several persons on a joint account, those persons are, in ninety-nine cases out of a hundred, trustees of the money, and yet the Court has always resolutely refused to go behind the recital or to inquire what the trusts are. The object of such recital being to keep the trusts off the face of the deed, the Court has always said that the persons to whom the conveyance is made can deal with the property as absolute owners [see Re West and Hardy, [1904] 1 Ch. 145].

The practice was recognised also by Chitty, J., in Carritt v. Real, etc., Co., 1889, 42 Ch. 263, though in this case the trustee had only an equitable interest, the trust property being an equity of redemption in leaseholds. The trustee fraudulently mortgaged the property by deposit of the deeds, and Chitty, J., held that, as the interest mortgaged by the trustee was only equitable, the prior right of the cestui que trust prevailed against that conferred by the trust-deed, which seems to show that the practice, however well recognised, does not override the ordinary doctrine that equitable interests take effect in order of priority of date. See also as to this, In re Morgan, Pillgrem v. Pillgrem, 1881, C. A. 18 Ch. D. 93, per Jessel, M.R., p. 103, though the doctrine would not give creditors of a testator any right against an assignee for value from an executor who was also residuary legatee of equitable assets when the assignee had no notice that debts were unpaid (Graham v. Drummond, [1896] 1 Ch. 968).

[Notwithstanding Re Harman and Uxbridge, etc., Co., supra, if the trusts on which the money on a joint account is held are disclosed the purchaser is entitled to inquire into them (Re Blaiberg and Abrahams, [1899] 2 Ch. 340).]

NOTICE IMPUTED THROUGH SOLICITOR OR AGENT.

The notice must

See C. A., 1882, sec. 3, subs. 2, cited supra. come or be imputed, not only in the same transaction, but to the solicitor as such, that is to say, as solicitor for the person to whom notice is to be imputed (Re Cousins, 1886, 31 Ch. D. 671). [But where a mortgagor constituted a solicitor his general agent in the transaction the knowledge of the solicitor is the knowledge of the client, even to the extent of fixing him with notice of a transfer of mortgage of which he knew nothing whatever (Dixon v. Winch, [1900] 1 Ch. 736).]

The enactment that the notice must be in the same transaction [does away with the doctrine formerly held that notice must be imputed from knowledge in a former transaction if it can be shown that the fact must have been remembered] (Hargreaves v. Rothwell, 1836, 1 Keen, 154; 48 E. R. 265; 44 R. R. 48; Thompson v. Cartwright, 1863, 2 De G., J. & S. 10; 46 E. R. 277; see also Blackburn, Low, etc. v. Vigors, 1887, 12 App. Cas. 531).

[When a solicitor is himself the mortgagor, and prepares the mortgage deed, the fact is insufficient to fix the mortgagee with notice of a prior incumbrance (Espin v. Pemberton, 1859, 3 De G. & J. 547; 44 E. R. 1380), and if a purchaser employs no solicitor, he is to be taken to have the same knowledge and to be liable for negligence to the same extent as if he had employed one (Atterbury v. Wallis, 1856, 8 De G., M. & G. 454; 44 E. R. 465]; In re Weir, 1888, 58 L. T. 792; Dart, V. & P., 1888 ed., p. 988; 1905 ed., p. 899).

For the principal to be affected, it must be the duty of the solicitor or agent to communicate to the principal (Wyllie v. Pollen, 1863, 3 De G., J. & S. 596; 46 E. R. 767; 32 L. J. Ch. 782).

In cases of a common officer of two companies, it has been held that his knowledge as officer of one company could not be imputed to the other (Royal British Bank v. Turquand, 1856, 6 El. & Bl. 437; In re Marseilles Extension Rly. Co., 1871, L. R. 7 Ch. 161; Gale v. Lewis, 1847, 9 Q. B. 730; 16 L. J. Q. B. 119; Re Hampshire Land Co., [1896] 2 Ch. 743; 75 L. T. 181; Re David Payne & Co., [1904] 2 Ch. 608).

Notice Imputed through Solicitor cannot be Rebutted by Evidence of Non-disclosure.-Espin v. Pemberton, 1859, 3 De G. & J. 547; Rolland v. Hart, 1871, 6 Ch. 678; see also Vane v. Vane, 1873, L. R. 8 Ch., at p. 400; Bradley v. Riches, 1873, 9 Ch. D. 189; Berwick v. Prince, [1905] 1 Ch. 632.

Whether the Imputed Notice can be Rebutted by Fraud of the Solicitor.Kennedy v. Green, 1834, 3 Myl. & K. 699; 40 E. R. 266; 41 R. R. 176, is the case generally referred to. There it was held notice could not be imputed to the client, because in the very transaction the solicitor was practising a fraud on the client; and see Sharpe v. Foy, 1868, 4 Ch. D. 35; and see Espin v. Pemberton, 1859, 3 De G. & J. 555; 44 E. R. 1380, where Chelmsford, L.C., said that the commission of the fraud broke off the relation of solicitor and client. But for the imputed notice to be excluded, the fraud must be in the same transaction (Rolland v. Hart, 1871, L. R. 6 Ch. 678; see also Atterbury v. Wallis, 1854, 8 De G., M. & G. 454; 44 E. R. 465; Boursot v. Savage, 1866, L. R. 2 Eq. 134, and the cases cited 2 White and Tudor, L. C. Eq., 1897 ed., pp. 235-238).

VOL. X.

4

NOTICE OF JUDGMENT.

See the judgment of Chitty, J., in In re Kensington, 1885, 29 Ch. D. 531, on the Acts 1 & 2 Vict. c. 110, s. 19; 2 & 3 Vict. c. 11, s. 4; 3 & 4 Vict. c. 82, s. 2. They were so framed as to impose an obligation on the purchaser, mortgagee, or judgment creditor to search the register for five years only. They were also so framed as to do away with "the equitable doctrine of notice of the charge where the charge was not registered." See also 23 & 24 Vict. c. 38, requiring that, to affect land, execution should be issued and the writ registered; and 27 & 28 Vict. c. 112, enacting that there must be delivery and execution.

As to what is delivery in execution of an equitable interest, see Anglo-Italian Bank v. Davies, 1878, 9 Ch. D. 275; Ex parte Evans, 1879, 11 Ch. D. 691; 13 Ch. D. 252, and cases where it could not be granted; Holmes v. Millage, [1893] 1 Q. B. 551; Harris v. Beauchamp, [1894] 1 Q. B. 801. See these statutes explained in In re Pope, 1886, 17 Q. B. D. 743; and the Land Charges Registration and Searches Act, 1888, passed to remove the danger noticed in In re Pope. As to notice of Lis pendens, see LIS PENDENS.

Notice in Lieu of Service.-See SERVICE AND DELIVERY.

Notice, Judicial.-See COGNISANCE, JUDICIAL.

Notice of Accidents.-See Vol. I. p. 93.

Notice of Action.-There were formerly many cases in which it was necessary for a plaintiff, one clear calendar month at least before issuing his writ (5 & 6 Vict. c. 97, s. 4), to give the proposed defendant notice that an action would be commenced against him, so as to enable him, if he thought fit, to tender amends before any costs were incurred. The plaintiff was required to state clearly in the notice the cause of action threatened, and also, in some cases, the Court in which he proposed to sue, with, of course, his own name and address, or that of his solicitor. There were numerous Acts of Parliament which required notice of action to be given, generally to persons acting in some public capacity, against whom proceedings were threatened in respect of any matter done or omitted, or intended to be done or omitted, in the execution of their official duties. Thus local authorities, justices of the peace, judges and officers of any County Court, officers of the army, navy, marines, customs and excise, etc., were entitled to this protection, if they were sued for any matter done in the discharge of their duty, or of what, under the circumstances as then known to them, they honestly believed to be their duty (Chamberlain v. King, 1871, L. R. 6 C. P. 474). But these provisions did not apply to actions in which the plaintiff claimed an injunction, e.g. to restrain a nuisance; as then he was bound to take immediate action (Bateman v. Poplar District Board of Works, 1886, 33 Ch. D. 360).

Now, however, by the PUBLIC AUTHORITIES PROTECTION ACT, 1893, 56 & 57 Vict. c. 61, s. 2, "so much of any public general Act as enacts that notice of action is to be given" is repealed; and, in particular, the enactments specified in the schedule to that Act are also repealed. Hence, in all ordinary cases, it is no longer necessary for the plaintiff to give any notice of action. But if notice of action was required by any

Act of Parliament, which is not a public general Act, and which is not mentioned in the schedule, it must still be given; for such enactment is not repealed.

Notice of Dishonour.-See BILLS OF EXCHANGE.

Notice of Intention to Proceed. See MONTH'S NOTICE OF INTENTION TO PROCEED.

Notice of Judgment. The Rules of the Supreme Court, 1883, adopt with but trifling alterations the very useful provisions first introduced by the Chancery Procedure Act, 1852, 15 & 16 Vict. c. 86, s. 42, under which any residuary legatee, or next-of-kin, or any legatee interested in a legacy charged on real estate, or any person interested in the proceeds of real estate directed to be sold, or any residuary devisee or heir, or any one of several cestuis que trustent under any deed or instrument, who may be entitled to a judgment or order for administration, may obtain such judgment or order without serving the other parties in the same interest (Order 16, rr. 33-36). And an executor, administrator, or trustee entitled thereto may have a judgment or order against any one legatee, next-of-kin, or cestui que trust for administration of the estate or execution of the trust (r. 38). Formerly, in all the above cases, the persons who, according to the practice of the Court of Chancery at the date of the passing of the Chancery Procedure Act, 1852, would have been necessary parties to the suit, were required to be served with notice of the decree. After such notice they were bound by the proceedings in the same manner as if they had been originally made parties, and they might obtain an order of course for liberty to attend the proceedings under the decree, and might within one month after service apply to the Court to add to the decree (15 & 16 Vict. c. 86, s. 42, r. 8; Cons. Order 23, r. 18).

Under the present practice the rule as to service of notice of judgment is no longer obligatory, but permissive only. For it is provided that whenever, in any action for the administration of the estate of a deceased person, or the execution of the trusts of any deed or instrument, or for partition or sale of any hereditaments, a judgment or order has been pronounced or made (a) under Order 15, (b) under Order 33, (c) affecting the rights or interests of persons not parties to the action, the Court or a judge may direct that any persons interested in the estate or under the trust, or in the hereditaments, shall be served with notice of the judgment or order (Order 16, r. 40). In the case of orders for general or partial administration in proceedings commenced by originating summons under Order 55, rr. 2, 3, the Court or a judge may give any special directions, touching the carriage or execution of the judgment, or the service thereof upon persons not parties, as they or he may think just (Order 55, r. 9).

The above observation, however, is subject to this qualification, that in actions under the Partition Act, 1868, 31 & 32 Vict. c. 40, a statutory obligation is imposed that all persons who would formerly have been necessary parties to the suit shall be served with notice of the judgment, unless indeed service be dispensed with under the Partition Act, 1876, 39 & 40 Vict. c. 17, in which case the complicated provisions of the last-named Act must be complied with (Phillips v. Andrews, 1887, 35 W. R. 266). See PARTITION.

Trautina 92 to Berru—"pen the resum of the summons to proceed With Requena ter the Master w if aslided by proper

NARVA LA, 9 peame teen termed with notice of such swak o e, que tirestions as to the mode of working it out Wra 55, t. 27, we be Baranet 1. Busse 1972 & Hare, App. I.

11, tower, on we hearing of the immons is appears that all WAPARATY JACven una nos panas the action or have not been served With Whah of the womens or order tiressions may be given for wivertemente lo celson and for leaving the counts in chambers; WAte con 101 the wects are not to be pressed with, and no other proceeding a le tem except for the purpee A waiting the parties to be served an all necessary partye wall tale teen semed, and are tonad or service shall have been dapentaen wi6, and 23. 1irections anal have been given as to the parties and are to attend the predia Under 55. £. 861

Purtis to be berei —It wu bell, under the 10 practice, that only Uvne peraona who, under the practice prior to 15 & 13 Vict. e. 86, were Dreary parlato & vilt before decree, as to be served with notice of the decree (Colyer v. Cooper, 1980, 11 W. B. 355; and see Knight v. Pocock, 1857, 24 Bear. 406; 63 ER £、 In a creditor's action a 4 redhary legatene ought to be served with notice of the judgment (In re Youngs, Doggett v. Kevitt, 1885, 80 Ch. D. 421

Where an estate is to be acid under the order of the Court, the general rule is that all the parties interested in the proceeds must, to weare a proper and advantageous sale, and protect the title of purchasers from being open to inquiry or impeachment, be parties to the guit or be served with notice of the judgment (Doody v. Higgins, 1852, 9 Hare, App. I. xxxii; 63 E. R. 774

A distinction between suits by creditors and suits by legatees, is that in suits by creditors, where one sues on behalf of others, the law gives a power to the trustees to deal with the estate, which it does not give in the case of legatees (Doody v. Higgins, uời supra). A creditor, as such, is never served with notice of an administration judgment (In re Schwabacher, Stern v. Schwabacher, [1997] 1 Ch. 719).

In order to bind remaindermen, they must be served with the judgment; but it is a rule of practice that no such directions should form part of the judgment (Greaves v. Smith, 1871, 22 W. R. 388).

Where a party was served with notice of decree, and afterwards. married, the trustees of her settlement were directed to be brought before the Court by service on them of the decree (White v. Stewart, 1866, 35 Beav. 304; 55 E. R. 913).

Where an order was made for service of notice of judgment on a purchaser who was no party to the suit, this was held to be improper, and the order was discharged for irregularity (In re Symons, Betts v. Betts, 1886, 54 L. T. 501).

An order for delivery up of deeds relating to the estate cannot be made against a person who is not a party to the action but has merely been served with notice of the judgment. It is only his interest which is bound (In re Parkes, Simpson v. Parkes, [1892] 66 L. T. 151).

Dispensing with Service.-Where, upon the hearing of the summons to proceed, it appears that by reason of absence, or for any other cause, the service of notice of the judgment or order upon any party cannot be made or ought to be dispensed with, the judge may, if