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London: LAW TIMES Office, 10, Wellington-street, Strand, W.C. The Law and the Lawyers. A PETITION representative of the views of all the leading solicitors practising at the Common Law Judges' Chambers, has been presented to the LORD CHANCELLOR, praying for an alteration of the time for hearing counsel's summonses by the masters. The hour is now 12.30, after which hour all summonses attended by solicitors or their clerks are postponed to summonses attended by counsel. The judge does not take counsel until two, and what is asked is that all summonses attended by counsel should be returnable at two. This proposed change would, we believe, prove very convenient to all concerned. WE doubt whether the public is sufficiently alive to the merits of the Bench. When judges sit three in a court or make awkward arrangements there is an immediate outcry-in which we have joined more than once. But no notice whatever is taken of extraVOL. LXVII., No. 1894. ordinary efforts made to dispose of the business. What excellent work is being done by the judges remaining in town during circuits! A divisional court sitting twice a week disposes of motions for all three divisions, whilst on the remaining days three courts are sitting at Nisi Prius and rapidly disposing of the Middlesex list. Add to this that the LORD CHIEF JUSTICE, finding little to do on the Western Circuit, makes a dash at Guildhall and finishes a part heard special jury. Counsel may find this judicial energy somewhat embarrassing, but the public ought to be in ecstacies. THE action of Mr. CROSS in attempting to suppress the Zulu exhibition in St. James's Hall has excited some surprise in legal circles. The jurisdiction controlling the use of licensed premises is vested in the magistrates, who for certain recognised offences may endorse the licence or refuse to renew it. Mr. CROSS, in his position as Secretary of State for the Home Department, has a certain limited jurisdiction over magistrates, but it is difficult to understand by what power of reasoning he could assume to exercise any summary control over or influence the conduct of a licensed house. A somewhat unfortunate result of such an attempt might have been foreseen, and that fact alone should have prevented any application to the directors of St. James's Hall. It is manifest that it would be highly inconvenient if any such power which by mistake was assumed should be vested in a minister of the Crown. "ORATORY and Orators" is the title of a work which reaches us from America. It is by Dr. WILLIAM MATTHEWS, and is a remarkable production. This first English edition is from the seventh American edition, and in small compass it deals with all the great English and American orators-forensic, political, and pulpit orators. We think few of our readers are aware what magnificent speakers America has produced, and they are happy in having in Dr. MATTHEWS a biographer of singular eloquence and power. Is oratory a lost art ? is one of the questions with which he deals. He admits the deadening influence upon public speaking of the daily press, but eagerly contends that oratory is not a lost art. He concludes that the art is not less in demand to-day than it has been hitherto, but of a different style, "because imagination and passion do not predominate in modern eloquence, but hold a subordinate place; because the orator speaks to the head as well as to the heart of his hearers, and employs facts and logic more than the flowers of fancy; because his most fiery and burning appeals are pervaded with reason and argument as well as with passion, it by no means follows that his power is curtailed." We agree. Let our forensic orators (if we have any) remember these words: "It is said by a traveller that the wild Indian hunter will sometimes address a bear in a strain of eloquence, and make a visible impression on him; but whatever may be the taste of Indians and bears, it is certain that civilised men, in proportion as they increase in culture, will avoid whatever is highflown in oratory, study brevity and plainness, and keep to the subject before them." This, however, surely points to a far humbler sphere for the modern orator than that which was occupied by the marvellous band whose names are recorded in the pages of Dr. MATTHEWS. THE amendment which was moved in the House of Commons on Tuesday last to the effect that a prisoner might be represented at a court-martial by a legal adviser, who should conduct the defence in like manner as in a court of civil jurisdiction, was one of serious import. The presence of a counsel or of a solicitor is allowed under the existing Queen's Regulations; and he may write questions to be put on behalf of the prisoner, as well as the address to the court for the defence, but he is not allowed either to examine witnesses or to address the court vivâ voce. The chief supporter of this amendment was Sir HENRY JAMES, who, characterising it as reasonable, went on to remark that the question it referred to was a very serious one. He objected to the cumorous mode of the existing system, on the ground that it caused a great waste of time, and allowed dishonest witnesses to defeat the object of cross-examination. It is obvious, however, that any objection to the existing system on these heads might be remedied without accepting the amendment. The SOLICITORGENERAL remarked that there were two things contemplated in the amendment. The first was, that the prisoner should have the assistance of counsel, a proposition with which the SOLICITORGENERAL agreed in principle. The second question was totally different, and depended upon the meaning of the amendment. If it meant that the procedure was to be the same as that adopted civil court, instead of the questions being reduced to writing, the prisoner's counsel would at once be entitled to cross-examine. If that was intended, then, in the SOLICITORGENERAL'S opinion, it should be expressly so stated, and then an opportunity would be given of showing that such an intention was totally inapplicable to military tribunals. Colonel STANLEY opposed the amendment on account of the difficulty there would be in working it. Still he had no objection to the principle of allowing a prisoner to have counsel, provided the defence was not conducted in a manner inconsistent with the ordinary rules of in procedure at courts-martial. The HOME SECRETARY thought that practically all that was wished for by the supporters of the amendment and the advocates of the offending soldiers was already granted. He pointed out, too, that if permission were given to soldiers to employ legal advocates, counsel would invariably be employed for the prosecution, and soldiers would thus in the long run be put at a disadvantage as compared with their present condition before the law. In the result the amendment was rejected by a large majority. It is not improbable that one of the divisional courts may at an early date be called upon to determine some novel questions with respect to the right of the London School Board to recover school fees. Mr. PITT TAYLOR, the judge of the Lambeth County Court, delivered judgment on Tuesday last in the case of the School Board for London v. Jukes. Three questions were raised. First, Is a parent liable to pay the weekly fee for the compulsory attendance of his child at school? Secondly, Is such fee, if unpaid, to be regarded as a debt? And thirdly, in the event of nonpayment, can the Board open an account with the parent, and subsequently bring an action to recover in a County Court, or were they bound to institute proceedings in a court of summary jurisdiction? The first point was decided in favour of the School Board. As to the second point, the judge decided that the Board was not entitled to give credit to parents for the school fees, but they must be prepaid. As to the third question, he decided that a civil court had no jurisdiction. The plaintiffs, however, have leave to appeal provided they undertake to pay the costs of the appeal in any event. The expediency of obtaining an early determination of these questions in a Court of Appeal is obvious. MUST a County Court registrar remain on the roll of solicitors or lose his office; or, in other words, is the necessity for his being a solicitor a continuing qualification, or one merely needful to support the appointment? These questions are as important as the answers to them seem to be doubtful. In the recent case of suspending a solicitor who was also the registrar of a County Court, Mr. Justice GROVE assumed that to strike him off the rolls would cost him the loss of his office; and so far this is an authority for holding that the being a solicitor is a continuing qualification. Sect. 24 of the County Courts Act 1846 provides that there shall be a clerk, now called a registrar, for every court, "who shall be an attorney of one of Her Majesty's Superior Courts at common law, and whom the judge shall be empowered to appoint, subject to the approval of the LORD CHANCELLOR." In subsequent sections powers are given to appoint other clerks or deputies, "being qualified as is herein before provided," by the above section. It may therefore be argued that the qualification is only needful to get the appointment, and ceases afterwards to be obligatory. The contention is plausible, that all the Act really requires is for registrars to be chosen from a body of men who have the requisite legal knowledge and training, as is proved from the fact of their being upon the roll of solicitors. But, when once appointed, the need for their so remaining solicitors ceases, as they become then officers of the County Courts, under the control of the LORD CHANCELLOR. That this view has been practically adopted, is shown by the case of the registrar in the City of London Court, who got himself struck off the rolls, and has since been called to the bar; while there may be other instances of which we are not aware. But there is a great deal to be said upon the other side of the question; that registrars must remain on the roll, and so be under the summary powers of the High Court in cases of misconduct. The question is of practical importance, inasmuch as. if County Court registrars can become barristers after appointment, they may achieve the aim of their ambition, and rise to the County Court bench, from which they are now excluded. THE practice upon bankruptcy appeals from County Courts must be strictly followed in every detail, however really unimportant, or the result will be an expensive failure. Such is the lesson taught by the CHIEF JUDGE's decision in the recent case of Re Green, Ex parte Donnithorne, which came on for hearing by way of appeal from the County Court judge at Salisbury. The order had been made on the 21st April, and though not drawn up until the 5th May, a copy of the notice of motion was left with the Registrar of Appeals, in London, upon the 12th May, which was well within the twenty-one days allowed by rule 143 of the Bankruptcy Orders. But it seems that a copy of the appeal motion was not served upon the respondent's solicitor, nor sent to the registrar of the County Court, until the 19th May. As to the first of these two points, the case of Re Wood (L. Rep. 7 Ch. 302) decided that the effect of rule 144, under which a four days' notice of appeal must be given to the respondent, is merely that the appeal motion shall not be heard until the four days have elapsed. This point, therefore, was not taken before the Chief Judge, but it was objected that under the same rule the appeal was irregular and out of time, because notice thereof had not been sent to the registrar forthwith," as that rule plainly prescribes. Counsel for the appellant wished to put in an affidavit explaining how the delay in sending this notice had 66 arisen, but the CHIEF JUDGE declined to receive this evidence, and, considering the respondent's objection valid, he dismissed the appeal with costs. As no one could possibly be prejudiced by the registrar not having had notice forthwith, the decision is evidently intended to bring about a strict adherence to the rules; but even for that praiseworthy purpose it seems somewhat strange that the judge should have refused to read an affidavit by which a merely technical defect in procedure could probably have been explained satisfactorily. Accidents may always happen, and some allowance should be made for such possibilities, especially when strict compliance with a rule is really unimportant, and the term "forthwith in itself requires a reasonable construction. ABOUT a year a ago we noticed an unfortunate decision by ViceChancellor MALINS aз to the operation of the Judicature Act with respect to the administration of the estate of an insolvent who died in 1874. Although the Act of 1873 generally was suspended at this date, the Vice-Chancellor held that the estate must be administered according to the new rule which it laid down, being of opinion that sect. 25, sub-sect. 1, was not suspended by the Suspending Act of 1874. The clause upon which the question arose enacted that the High Court was to administer the law according to its provisions, one of which was that the estates of insolvents who might die after the passing of the Act should be adminstered according to the rules in bankruptcy. In the case of Re Richards, Hilton v. Jones, Vice-Chancellor MALINS persuaded himself that the new law came into force at the passing of the Act, though the Act itself was not to take effect till later. He decided, in fact, that the Court of Chancery was bound by the new law laid down for the court which was to take its place. The appeal against the order made in this case was dismissed on grounds which made it unnecessary for the court to touch the question to which we refer. But the point was just alluded to, and Lord Justice JAMES made a remark which he has quite recently had an opportunity of repeating in a judg ment. The exact point arose again in Sherwen v. Selkirk, on the 21st June last, on appeal from Vice-Chancellor MALINS, who had, of course, followed his former decision. The Court of Appeal naturally reversed the decision of the Vice-Chancellor, Lord Justice JAMES remarking that, as the constitution of the High Court was suspended by the Act of 1874, it followed that the new law which was to be administered by that court must also be suspended. The mention in the clause in question of the passing of the Act was merely part of the description of the persons whose estates were to be dealt with. The court, in the administra tion of the assets of any person who might die after the passing of the Act, was to be guided by the rules in bankruptcy. It is to be hoped that the estates in these two cases are the only estates of insolvents dying between the passing of the Act of 1873, and the date at which the Act of 1875 came into operation which have at present come to be administered in the Court of ViceChancellor MALINS. It used to be said that only five per cent. of the bills in Chancery drawn ever came to a hearing; but probably no person whose interest was hurt by the decision in Hilton v. Jones would have been content to sit down under it. To those who were not affected by the case the arguments and judgment offer an amusing study of the ingenuity which can be expended over an utterly untenable contention, or, as it was called by one of the counsel, a mare's nest. The case is reported in 38 L. T. Rep. N. S. 808. Sherwen v. Selkirk is at present only in the Weekly Notes for the 28th June. PERSONAL insults, unaccompanied by any act which can be construed into an assault, cannot it seems be prevented by any legal means. This point was decided last week in the case of Phillips v. Justices of Gateshead, which came before Lord Chief Justice COLERIDGE and Mr. Justice FIELD sitting as a divisional court for hearing motions from all the divisions. The facts of the case were these: A policeman at Gateshead had been dismissed from the force, and, in order to be revenged on the chief constable, who it is to be presumed was the cause of his dismissal, the discharged officer took every opportunity of using insulting language about and towards his late chief. This individual put up with the annoyance for a considerable time, but his patience became exhausted; and, not knowing what else to do in order to put a stop to the nuisance, he applied to the justices to bind over the ex-policeman to be of good bebaviour, on the ground that he, the chief constable, "would otherwise be provoked to commit a breach of the peace." The justices, with a natural desire to sup port the dignity of so important a person as the head of the police, at once acceded to the application, and ordered the defendant to find sureties for his good behaviour for six months, subsequently committing him to prison for that period in default of finding the sureties required. Thereupon a rule for a writ of certiorari to bring up the warrant of committal to be quashed was obtained, and, in making it absolute, it was pointed out by the Court that a condition precedent to the granting an order, calling on a person to enter into recognisances to keep the peace or be of good behaviour, was an oath by the applicant that he went in bodily fear of the person to be bound over. In this case it was the converse; the applicant swearing that he apprehended a breach of peace by himself, unless defendant was bound over. What would inevitably be the result of a case like the one in point must be obvious, but at the same time it brings to view a state of things by no means satisfactory. It simply comes to this, that if one man chooses to insult and annoy another, he may continue to do so as long and as often as he pleases, provided he does not commit an assault or make use of slanderous or obscene language. The person annoyed has no remedy. He has no right of action, there is no criminal procedure which will relieve or protect him, and if he takes the law into his own hands and avenges the insults by personal chastisement, he renders himself liable to a prosecution for an assault. ONE of the latest cases in which the courts have been called upon to determine the limitations to a defendant's right to a trial by jury was heard by Vice-Chancellor BACON in The Singer Manufacturing Company v. Loog (40 L. T. Rep. N. S. 647). The action was commenced in the Chancery Division to restrain the sale and advertisement as Singer machines of any sewing machine not of the plaintiffs' manufacture. The statement of defence alleged that the name "Singer" never had been exclusively used to denote machines manufactured by the plaintiffs. The action had been set down by the plaintiffs for trial by a judge without a jury. The defendant thereupon applied under Order XXXVI., r. 3, that certain issues of fact might be tried before a judge and jury, and that the action should be transferred to one of the common law divisions. The effect of the authorities with reference to that and the following rules appears to be that the defendant has an absolute right to elect to have the action tried by a judge and jury in the case of strictly common law actions; whereas, where the action is one which before the Acts would have been properly brought in a Court of Chancery only, the discretion of the court is preserved by rule 26 of the same order. Upon this question a reference may be made to Pilley v. Baylis (36 L. T. Rep. N. S. 296) and Buck v. Hay (36 L. T. Rep. N. S. 295). In the case before Vice-Chancellor BACON the rule stated by Vice-Chancellor HALL in Garling v. Royds (25 W. R. 123) was adopted, and it was held that, as the issues of fact were of a very complex kind, involving inferences of law, and as the case raised by the pleadings involved minute questions of law mixed up with questions of fact, and the examination of numerous specifications, that it was not a fit case to be tried before a jury. "The old evil," said his Lordship, "which was so much complained of, that people were sent from one court to another, and expense was increased, and the burden thrown upon suitors, would be perpetuated if I listened to such an application as the present." The application was accordingly refused. Reliance was placed by the defendant on the case of West v. White (36 L. T. Rep. N. S. 95), but it was distinguished on the ground that the question at issue in that case was essentially one for the jury. THE doctrine of relation back as applied to the title of a trustee in bankruptcy has given rise to many curious questions, but that some doubtful points still remained for decision was shown by the case of Ex parte Bouchard, which came recently before the Court of Appeal. The issue there to be determined was whether the title of a trustee could relate back to an act of bankruptcy committed by the bankrupt upon a debtor's summons issued by a creditor (not the creditor upon whose petition the adjudication had been made) who presented a petition that had not been completed. It seems that in Nov. 1877 one TURNER served a debtor's summons, on which an act of bankruptcy was committed, and he accordingly presented a petition. The debtor disputed the claim, and in the end an order was made, adjourning the hearing upon his bringing into court £124 to abide the result of an action which the creditor was to bring in the High Court, with liberty to apply. The money was duly paid in by the debtor, who was, however, adjudicated bankrupt upon another petition in May 1868. In January 1879 TURNER reCovered judgment for £107 and costs, and he thereupon asked that the money in court should be paid out to him, upon which the trustee objected, arguing that under sect. 11 his title related back to the old act of bankruptcy committed under the debtor's summons, and consequently that the sum claimed formed part of the assets to be administered in bankruptcy. But the Court of Appeal, composed of Lords Justice JAMES, BAGGALLAY, and THESIGER, supported the decision of Mr. Registrar MURRAY, holding that TURNER was entitled to the money. Lord Justice JAMES said that the sum was paid in under the provisions of sect. 9, "as a security for a particular debt. The equitable title of the creditor was complete when the money was paid in to abide the event, and after that the only question was whether the event had occurred." His Lordship further held that the case was really governed by Ex parte Weir (25 L. T. Rep. N. S. 369), which decided that non-compliance with a debtor's summons was only a qualified act of bankruptcy. It is curious that in this case the present point was anticipated by Lord Justice MELLISH, who, in answer to an argument then used, said," When the debt is paid the act of bankruptcy committed at the expiration of the time mentioned in the debtor's summons ceases to be an act of bankruptcy upon which the debtor can be adjudicated a bankrupt and we think it, at the same time, ceases to be an act of bankruptcy to which the title of the trustee would relate back under the 11th section." It was doubtless in view of these words that Lord Justice THESIGER said their decision was the "legitimate conclusion to Ex parte Weir." He also put the whole point very plainly by holding that payment into court was equivalent to payment to the creditor, who, if he had himself obtained the money, could clearly have kept it as against the trustee. The case of Ex parte Jay (29 L. T. Rep. N. S. 854) was also quoted in the argument as being an authority bearing upon this impor tant point, but it was easily distinguishable. For there the first creditor had proceeded as far as a petition and the appointment of a receiver, with whose consent the debtor paid a portion of the claim, and the petition was withdrawn. Upon adjudication by another creditor it was held that the trustee's title related back to this earlier act of bankruptcy, but upon the distinct ground that the receiver, being a trustee for all the creditors, had no right to permit the payment to be made. Lord SELBORNE'S judgment is based upon the mischief that would result were such transactions allowed; but he carefully said, "assuming as I do that no fund to which the creditor was entitled was identified." Here, again, we see the position of things in Ex parte Bouchard anticipated, for this last decision was given in favour of the creditor, upon the very ground that the money paid into court was a fund that had been identified, and one to which, by reason of such payment so made to abide an event that had occurred, he had obtained a complete equitable title. THAT it is the duty of a solicitor to preserve an inviolable secrecy with respect to communications made to him by his client is well known; but it is sometimes forgotten that the protection afforded by our law to such communications is the privilege of the client. In Branford v. Branford (40 L. T. Rep. N. S. 659) the petitioner had obtained a decree nisi for a divorce. The Queen's Proctor subsequently obtained leave to intervene. At the trial the solicitor who had acted on behalf of the petitioner in the previous proceedings was called by the Queen's Proctor, and was asked whether the petitioner had not the day before the last trial confessed to him that he had been guilty of adultery. This question was objected to by the counsel for the petitioner. In support of the claim to put the question it was argued that the Queen's Proctor was acting as a public officer, and that suits for divorce were quasi-criminal. Sir JAMES HANNEN decided to reject the evidence. Proceedings in divorce suits are not criminal, and, if not criminal, it is useless to call them quasi-criminal. Hence the rule applies that in civil proceedings a legal adviser who is employed professionally by a client to transact professional business may not disclose matters of professional confidence. In Mordaunt v. Moncrieffe (L. Rep. 2 Sc. & Div. 393), the question was much debated whether divorce proceedings were analogons to criminal proceedings. "Much has been said," observed Lord HATHERLEY," both in the Court below and before your Lordships, as to the analogy of the suit for a divorce to a criminal proceeding; and it has been inferred that, inasmuch as every step in the proceedings against a criminal is arrested by his or her becoming lunatic, so by parity of reasoning lunacy should bar all procedure against a respondent in a divorce case. But the procedure in divorce is not a criminal proceeding." Having recognised the fact that the consequences of a divorce might be far more severe than those in the civil suits generally, his Lordship pointed out that the result took place as a consequence of the proceedings. Lord CHELMSFORD thought it unnecessary for the determination of the question upon which the noble lords were engaged to consider whether proceedings for a divorce were of a civil, or criminal, or quasi-criminal nature. FEW judges hold a stricter rein over costs then does the present MASTER of the ROLLS. The admirable rules formulated by his Lordship for the guidance of his chamber clerks must have lessened very considerably and beneficially for suitors, the necessary costs of administration in that branch of the court. It is not, however, often that his Lordship makes such a strong order as to costs as he did last Monday in a case of Re Strafford, Strafford v. Warren, where he ordered the next friend of an infant to pay the costs of an action instituted for the administration of a testator's estate in which the infant was interested. We must say, we think his Lordship was perfectly justified in making the order he did, and that judges should testify in the strongest and most effective way they can their disapprobation of actions instituted nominally on behalf of an infant, but really for some entirely collateral object. The liability of every trustee or executor of a small estate of being called upon to account and to have the estate administered in an expensive way by the court would otherwise lead to numerous cases of hardships, and to infants' property being, as would have been the case in Re Strafford but for his Lordship's order, entirely swallowed up in costs. facts were shortly as follows: It appeared that the testator was entitled to a small public-house, and that a friend of the The executrix, the testator's widow, who was carrying on the publichouse, had lent her a sum of about £250 to pay the testator's debts. The executrix married, and thereupon the creditor, fancying that the assets would be wasted, consulted his solicitor, who, instead of bringing an action against the executrix for payment of the debt, commenced an action by a next friend on behalf of an infant son of the testator who was entitled to the residue of his property, against the executrix and the creditor for the administration of the testator's estate. A receiver of the public-house was at once appointed, and the executrix of course dispossessed. The public-house was subsequently sold by consent for £340, and the only remaining asset, a debt of £80, was got in, the whole estate thus realising a sum of about £420. The usual accounts were taken in chambers, some of the proceedings being much litigated, and the action now came on on further consideration. The question was, how were the costs of the action to be borne ? The solicitor for the executrix admitted that his costs would amount to about £150, and, as his Lordship said, the costs of the plaintiff and the creditor would at least amount to as much more, and therefore, after deducting the £250 due to the creditor, if the costs were to be paid out of the estate, there would be absolutely nothing left for the infant. Under these circumstances his Lordship said that he was sorry he could not make the real offenders responsible for the costs, namely, the creditor whose action it really was, and the solicitor who had improperly instituted it on behalf of the infant. He was clear the action had not been bonâ fide commenced on behalf of the infant, but a next friend, a stranger to the family, had been obtained by the solicitor, and the object really was to secure the creditor payment of his debt. He might have obtained payment by an ordinary action, and without the necessity of expensive accounts in chambers, and he could not but regard the administration action as quite unnecessary. All he could, however, do was to make the next friend personally pay the costs of the defendant, the executrix, such costs not to exceed £100, leaving the next friend to get them back if he could under any indemnity he might hold. The creditor would get no costs, and in this way there would be left a small balance of the estate for the infant, which would be carried over to a separate account in his name. THE REPORT ON LAND TITLES AND TRANSFER. THE select committee appointed to inquire whether any and what steps ought to be taken to simplify the title to land, and to facilitate the transfer thereof, and to prevent frauds on purchasers and mortgagees, have, after sitting through two sessions, and hearing a vast amount of evidence, agreed upon their report, which has just been published. The committee have, besides all this, gone over the evidence taken before the Royal Commissioners in 1868, and their report, and have in short considered and reconsidered everything that has been said or written upon the subject. The recommendations which we printed last week are the outcome of all this labour, and as such they are of great importance, especially in so far as they contain really practical proposals. But, as this report may really be looked upon as being, for some time to come at all events, the last word that will be said about this much-vexed question, it is worthy of careful study in its complete form. The committee addressed themself to two questions: first, the operation of modern statutes relating to land titles and transfer; and, secondly, the possibility of still further simplifying and securing the title and facilitating the conveyance of real property, either by amending these statutes, or by fresh legislation. The report is remarkably full and frank in its dealing with the first part of the subject. "The failure of Lord Westbury's Act, which enabled owners of land to register and record what was called an indefeasible title, is matter of history." Thus shortly is one grand scheme disposed of with the addition that, "As that Act has been practically superseded by the Land Transfer Act 1875, it is perhaps needless to dwell further upon the causes of its failure." Passing the Real Property Limitation and the Vendors and Purchasers Acts of 1874 with the remark that they are useful and beneficial measures, the report comes to the consideration of Lord Cairns's scheme for the Registration of Titles as absolute, qualified, or possessory. Though not yet matter of history, the failure of this statute is equally complete. The figures are actually lower than those returned under Lord Westbury's Act, and, after an experience of three years and a half, the committee are bound to say of the Chancellor's scheme from which so much was expected, that "the Act may therefore be considered to have become for all practical purposes a dead letter." Attempts are made to account for this strange unpopularity which are all more or less ingenious and far-fetched. It is ascribed to the fact that a title once placed upon the register cannot be removed. But the committee point out that this will hardly do, for "if the Act worked well it is difficult to see why any person once on the register should wish to be removed from it." Another reason given is the general distrust of all plans for land registration evoked by the breakdown of Lord Westbury's Act, which is likely enough. Again, it may well be, because neither the public nor the Profession like " to run the risk of an experiment which involves so great a departure from established usage." Another suggestion is, that solicitors will not recommend their clients to a course of dealing which may eventually curtail their own profits. But we are glad to say that none of these reasons can, in the opinion of the committee, fully account for "the total collapse of the system inaugurated by the Act of 1875." They point out that, even if every solicitor in England acted from selfish motives, there must have been, amongst the many thousands who had bought land since 1875, some persons able to judge for themselves of the benefits of registration, while, as to the novelty of the system stopping its progress, this is answered by the fact that "so far from the Act becoming more popular in proportion as it was better known, the applications under it have been steadily diminishing until at last they have dwindled down to nil." But before coming to the reasons given by the committee for the utter collapse of Lord Cairns's scheme, let us step aside for one moment to glance at the evidence of only one witness out of many whose testimony as to the working of the Act will account for any amount of failure. Mr. Follett has acted as registrar of the Landed Estates Court since its first establishment in 1862, and has thus had practical experience of the various systems. The process to be gone through before a title can be registered occupies at least three months, and often longer, and is just the same as it would be in a first-class London solicitor's office, he being aided by a conveyancer. The registrar stands in the place of a mortgagee's solicitor, and requires the title to be as strictly proved. Beyond all this the applicant has to issue an advertisement and await the judgment of the court. The amount of work to be done, were the system really successful, would break down the office and necessitate having branches all over the country. But Mr. Follett admits that, even after consulting with Mr. Holt, he has never been able so much as to sketch out a voluntary system that would succeed; nor does he see how the registration of absolute titles can ever be made compulsory. This witness could give no other reason for the failure of the last Act than that "it interferes so very much with the ordinary custom of the country." The report seems to adopt this reason in principle, for it speaks of "the superstitious reverence for title deeds which prevails in this country," and of the preference shown by Englishmen for managing their affairs in their owr way. Reference is also made to the dislike of running the gauntlet of official inquiry, aggra vated by the fear that an attempt to register may only end in finding a flaw in their title. Of course, if this were a primitive community, and transfers were as simple as they are in South Australia for instance, then the matter would be simple enough. For there every landowner starts with two things which are the stumbling-blocks of English conveyancers, "a perfect root of title to his property and a trustworthy key to its identity." Amongst ourselves, from the very condition of older societies, this cannot be so, and complicated rights over the same property often co-exist in different persons. But the true kernel and conclusion of the report upon this head of inquiry is so well put in one short passage that we cannot do better than quote it entire: "If indeed an Act of Parliament could be passed for England or Ireland, either prohibiting the owner of property from tying it up or charging it, except in a particular manner, or giving to the possessory proprietor the right of dealing with it as if it was his own; in other words, if the law either recognised nothing but estates in fee simple, or gave to the holder of the land the same power of disposition which the holder of stock now enjoys, the registration of titles would be as easy as the title itself would be simple. But such changes would be so opposed to the general feeling of the country that, for the present at least, it would be idle to consider them seriously. In the meantime it seems to your committee that to legislate for the registration of titles without, as a preliminary step, simplifying the titles to be registered, is to begin at the wrong end." With the sound sense of this conclusion, as with the reasoning upon which it is founded, we heartily agree; and believe that in this fallacy lies the cause of the failure of all such schemes, whether past, present, or to come. Having arrived at these conclusions, the report proceeds to consider whether the Act of 1875 can be improved, but the committee are here met with the difficulty that, upon the evidence before them, no system for the registration of titles can be devised which, upon its own merits, will be voluntarily adopted by the landowners of England or Ireland. It was, indeed, suggested by the Lord Chancellor that there might be more chance of success if the office charges were reduced or remitted; but, as this depends upon his own motion, he can make the experiment if desirous, without the need of fresh legislation. Summing up the result of their researches the committee find that the questions at issue are really very simple. On the one hand, no system of registration of titles will ever be voluntarily adopted; and on the other, the Lord Chancellor even does not see his way to make such registration compulsory. There fore, without expressing any opinion as to this latter point, or upon the various schemes laid before them, the committee think, "it would be very difficult to force upon every purchaser or mortgagee in this country a mode of dealing with his property which not one purchaser or mortgagee in 20,000 adopts on his own account." We could not wish the point more plainly put than this, and it was hardly necessary for the committee to support themselves with the perfectly sound axiom of the Royal Commissioners that "for an institution to flourish in a free country it must offer to people the thing they want." The report concludes this portion by gracefully getting rid of the question with a hope that the time may come when, titles being simpler, "the unquestionable benefits of a registration of titles may be more generally appreciated." The committee do not propose either to amend or extend the Land Transfer Act 1875, which has so far failed. Nor do they wish it to be repealed, but believe that it may be carried on concurrently with the system of registering assurances, which is the system they recommend. Admitting that the registration of titles is, in the abstract, preferable to that of deeds, they hope further experience may induce the public to indorse that opinion. Meanwhile the only specific proposal upon this head is contained in their tenth recommendation, which is, "The localisation of the registration of titles, as far as practicable, concurrently with the establishment of district registries for the registration of assurances." But this tentative suggestion really means little or nothing, and need not be further considered. The main scope of the report is in relation to the simplification and cheapening of land transfer, and the new system proposed for an extended registration of assurances. The due discussion of this important question needs more space than can now be given, and must await another occasion. THE DISTINCTION BETWEEN EASEMENTS AND PRIVILEGES IN GROSS. Ir has long been the constant fate of easements to be confused with many things to which they bear a sort of superficial resemblance with natural rights, public rights, rights of common, customary rights, and profits à prendre. We propose in this article to review the history of a new confusion, which originated about thirty years ago in the case of Wood v. Hewitt, and threatens now to assume very serious dimensions. The main characteristics of easements are expressed in the terms of the following definition. An easement is a privilege; (1) beneficial, but not profitable, in the sense that it confers no right to take or carry off anything of profit issuing from or part of the land over which the easement is enjoyed; (2) it is enjoyed in respect of a dominant tenement over a servient tenement not in the possession of the same owner; (3) it must be directly beneficial to the occupation of the dominant tenement; and (4) its subject-matter must be of a kind known to the law, and recognised as proper to be subject-matter of an easement. The distinction which we are about to discuss turns upon this last point. Not every privilege which can be imagined as likely to be beneficial to a dominant tenement can be made into an easement in the proper sense of the term, even though the owner of the servient tenement be willing to grant the privilege by deed to the owner of the dominant tenement. The thing which the easement confers a right to do, or a right to hinder from being done (as the case may be), must be one of a certain set of things known to and recognised by the law as proper to form the subject-matter of an easement. If this condition be unfulfilled, we get, instead of an easement, a nondescript privilege in the nature of an easement, which differs from an easement proper in this important particular, that it is not and cannot be made appurtenant to the dominant tenement. If such a nondescript privilege be granted by deed, the grant may be good enough, but only as between the parties, and it will not in any way affect their respective assigns. This resembles the distinction between covenants which run with the land and collateral covenants. As not all covenants can run with the land, but only those duly qualified by their subjectmatter, so not all privileges can be made appurtenant to land, but only those which are the subject-matter of easements. An easement is appurtenant to the dominant tenement, while other nondescript privileges are privileges in gross and pertain only to the individual. The benefit of an easement passes with the dominant tenement into the hands of an assign, and its burden passes with the servient tenement; but a privilege in gross is entirely collateral to the lands and tenements both of the person who reaps the benefit, and of the person who bears the burden. This is one great difference between an easement and a privilege in gross. There is also another difference not less important between them; for while an easement is irrevocable, a privilege in gross, even though granted by deed, is in general revocable at the will of the grantor. If the privilege be necessary to the enjoyment of an interest or estate granted by the same person (when it is commonly called a licence coupled with an interest), then it cannot be revoked, even though it be granted only by parol; but this kind of privilege would be more analogous to a profit à prendre than to an easement. The privileges of which we now speak are licences to do acts on or in respect of another man's lands and tenements, which, but for the licence, would be trespasses; and these bare licences are in general revocable, even though granted by deed. These remarks have been suggested to us by a recent decision of Mr. Justice Fry in the case of Moody v. Steggles; which, if it has not erred, seems at least to have added a new item to the list of easements. In that case the plaintiff owned a public-house which was built at some little distance from the main road down a side court, and the plaintiff owned a house at the corner of the main road. The public-house was invisible to passengers along the main road except while they were passing by the entrance to the court, and, in order to attract their attention, a signboard was attached to and stuck out at right angles from the defendant's corner house. This signboard had been there in substantially the same position and condition for upwards of forty years before action commenced, and the plaintiff's house had been occupied and used as a public-house during the same period. The board having been taken down for repairs, the defendant refused to allow it to be refixed, and this action was brought for an injunction to restrain the obstruction and for damages. Mr. Justice Fry held that the privilege claimed was a good easement, and granted the injunction. He is reported to have relied upon the following cases: Wood v. Hewitt (8 Q. B. 913), Lancaster v. Eve (5 Jur. N. S. 683; 5 C. B. N. S. 717), and Hoare v. Metropolitan Board of Works (L. Rep. 9 Q. B. 296; 29 L. T. Rep. 804). We propose, for the edification of the reader, to trace the steps through which the principle relied upon in Moody v. Steggles derives its imaginary pedigree from Wood v. Hewitt. In Wood v. Hewitt the plaintiff sued the defendant in trespass for damaging a hatch or sluice sliding in grooves between piles of masonry, which were built on the sides of a stream running through the defendant's ground. As the action was in trespass, the plaintiff was obliged to declare that the injured hatch was his property. The defendant pleaded that it was not the property of the plaintiff. At the trial there was evidence that the ground on which the sluice stood belonged to the defendant; and it was contended that, as being a chattel affixed to his freehold, the sluice was his property. In the end the Court held that it was not; and laid down a doctrine, afterwards followed and confirmed in Lancaster v. Eve, that it depends on the intention of the parties whether A.'s chattel fixed on B.'s soil becomes part of the soil or remains the chattel of A.; and that this intention may be presumed from circumstances. By this time the reader will perhaps begin to wonder what all this has got to do with easements. He must observe the circumstances of the case. The action was brought in 1846 under all the rigours of the old unreformed pleading, before the passing of the Common Law Procedure Acts, when the slightest error in point of form was fatal. No doubt the plaintiff had carefully considered whether he should declare in trespass or in trespass on the case. Having chosen to declare in trespass, he was obliged to aver that the hatch was his chattel, and this opened to the defendant the above-mentioned plea, whereby he sought, by means of the intricacies of pleading, to make a good defence in law out of the legal maxim, Quidquid plantatur solo solo cedit, which was no defence at all in justice. The judges were naturally willing to disconcert these tactics, and they cast about for any means whereby they might escape from the legal maxim. While they were in this frame of mind, Mr. Justice Coleridge during the argument stumbled upon the word "easement." Might not the plaintiff," he asked, "acquire the easement of having his hatch on the defendant's land ?" The preceding words show plainly enough what he meant. He meant to ask whether there might not be something in the particular circumstances of the case which would rebut the presumption derived from the legal maxim, and prevent the defendant's plea from being fatal to the plaintiff's declaration. The Court finally held that there might be such a something; namely, an agreement, express or presumed, between the parties, that the chattel, though fixed to the soil of the one, should yet remain the property of the other. There is nothing about easements in the judgments delivered: the thing is there made to depend in the plainest manner upon agreement between the parties. In that case the plaintiff seems really to have had an easement; not the right to keep a hatch on the defendant's land, but the right to draw water from the defendant's stream: a very wellknown easement indeed. If, instead of suing the defendant in trespass for injuries done to the hatch, he had sued him in trespass on the case for diminishing the supply of water to which he was entitled, the question of the legal property in the chattel would never have arisen, and the ill-omened remark of Mr. Justice Coleridge about easements would have remained unuttered, to the great benefit of succeeding generations. For it is very probable that, but for that remark, nobody would have thought of talking about easements in Lancaster v. Eve. There a barge had run against a pile fixed in the bed of a navigable river, in front of a wharf; and the owner of the barge being sued in trespass by the owner of the wharf, tried to escape liability by denying that the property in the pile was in the plaintiff. The ruling of Wood v. Hewitt was emphatically affirmed; but the judges, instead of confining themselves strictly to the ratio decidendi contained in the judgments (i.e., that the property in the chattel was regulated by agreement), took a perverse pleasure in wandering off this safe ground on to the dangerous ground of easements. They made some remarks which were not at all necessary to the decision of the case; and which, if |