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The Jurist

No. 637-VOL. XIII.

MARCH 24, 1849.

PRICE 18.

* The following are the Names of the Gentlemen who favour THE JURIST with Reports of Cases argued and decided in the several Courts of Law and Equity:

that, under the present system of laying abstracts before counsel, deeds are not set out at length, the answer is, in the first place, that the abstract is, or ought to be, pre

of sufficient legal science and acumen to know when the whole or portions of a deed require to be fully set out, and when not; and, in the second place, that, in reference to the particular difficulties of each transaction, if the solicitor does not set out the important passages of a deed fully, there is still the vigilance of the conveyancer to rely upon; and it is not often that he neglects to call for a verbatim copy of any powers or limitations affecting the essence of the title under which his client is to take. It is not necessary in an abstract of title laid before a particular purchaser, about to purchase a particular interest, that everything should be set out fully, for the very reason that the attention of his advisers is particularly directed to the points on which, with reference to the particular purchase, full information must be looked for. But a registry is an irrevocable abstract of title destined for all purchasers; prepared beforehand; without any knowledge of the point of the title from which a particular future purchaser will wish to start, or the prts of it on which full informaation may be essential to him. Hence it is, that, unless it contains a full record of every transaction at length, it must, of necessity, fail, in probably a vast majority of cases, to afford the requisite information to the particular inquirer.

THE next question of principle, which is, we apprehend, essential to the successful operation of any re-pared from the deeds themselves, by a solicitor possessed gistration of titles, is, that all deeds shall be registered at length. If the present still verbose style of drafting makes that impracticable, consistently with its continuance, the Legislature should couple registration with some efficient measure for rendering conveyances short. But, whether they remain long, or whether they become models of brevity, all deeds must be found, by the searchers in a registry-office, set out in full, if the registry is not intended to be a snare, instead of a benefit. A few examples readily suggest themselves of the kind of case in which any mere abstracts would be useless; in which, in fact, according to the present practice, abstracts never do satisfy a purchaser's conveyancer. Of what use, for instance, is it to be informed that A. appointed undera deed conveying to uses to bar dower, or that an appointment was made by a married woman by will, under a power given to her to appoint by deed or will, unless the precise terms of the limitation or power are set forth? Of what use would it be to learn that A., a mortgagee, took a conveyance of the equity of redemption, with an assignment of the debt to a trustee, unless the exact nature and language of the deed was known: or of what use would it be to a person purchasing from one who claimed under trustees for sale, to know, that, by a certain deed, lands were conveyed to trustees upon divers trusts, with powers of sale; and that, by another deed, the trustees, exercising their power, had sold and conveyed? It is manifest, that in these, which are but the most familiar instances, and in numberless others, unless a registry shews the whole transaction in its details, it is useless. If it be said, VOL. XIII.

K

The next question, which is in the nature of a question of principle, is, the mode of identifying parcels; for on this depends the quiet enjoyment of property as much as on the exhibition of its legal devolution, and of the rights incident to it. And as a registry is intended to be an engine of security, not for a day or a year, but for generations, it should be so constituted as to make

identification of parcels independent of the changes which ON THE OMISSION TO GIVE NOTICE OF

1

FILING PROCEEDINGS UNDER THE 23RD
ORDER IN CHANCERY OF 1842.

The 23rd General Order in Chancery of 1842 directs, that when any solicitor or party shall cause an appearance to be entered, or an answer, demurrer, plea, or replication to be filed, he shall on the same day give notice thereof to the solicitor of the adverse party, or to the adverse party himself if he acts in person. On this Order the question has arisen, whether the consequence of neglect to give notice entitles the party, to whom it ought to be given, to set aside the proceedings, or merely entitles him to time. In a case of Johnson v. Tucker, (11 Jur. 466), replication had been filed on the 11th March, and notice was not given till the 15th April. The Vice-Chancellor of England ordered the replication to be taken off the file. It was contended, that, if delay was caused to the defendant, he might apply for further

the fancies of men, in reference to nomenclature, not less than their wants in reference to subdivision, tend to introduce. That many titles are unmarketable, from the difficulty of identifying the triangular piece of land, now called, perhaps, "The Home-field," and known by that name as far back as living or hearsay evidence can be carried, as a portion of some other piece of land of a totally different name, and, perhaps, of a totally different shape, according to the description of the parcels in the older deeds, is a fact but too well borne out by daily experience; and the question is, how the difficulty is to be met. That maps of some kind must be used, is tolerably clear. But we apprehend that it is not the mere addition to a deed of conveyance of any kind of map of the parcels that will meet the principle of the difficulty. A map, however correct, is, if no more than a common map, but a picture of a given piece of land, exhibiting its boundaries by reference to other boundaries, them selves of a fluctuating character; so that a map of Black-time, and such time would be granted at the cost of the acre, easily identifying it to day, may be as useless for defendant. But to this the Court answered, that the the purpose twenty years hence as the old-fashioned plaintiff had no right, by neglecting to comply with the description of parcels. The principle that should be rules of the Court, to put the defendant to trouble, and kept in view we take to be this, that the maps of par- force him to incur any, even the smallest risk of costs; cels annexed to conveyances, for the purpose of an and in the judgment, his Honor says, "The effect is, that efficient registration, should be constructed on the prin- the defendant may be obliged to take a course of prociple of referring by measurement to a sufficient num-ceeding, which, by the rules of the Court, would not have ber of fixed points, previously ascertained, on the face of the country; so that whatever becomes of the existing physical marks, such as hedges, ditches, roads, or the like, constituting visible boundaries, the identity of the parcels may at all times be ascertained, if need be, by the map itself containing the means of re-constructing it. If these fixed points remained wholly to be ascertained, it would, of course, be an objection to the plan that great previous delay and expense would be incurred. But, for a large portion of the surface of the country, the existing ordnance maps, and the field-give notice till the 30th. There could hardly be a case, books and calculations on which they have been constructed, already afford fixed points accurately ascertained in abundance; and as to that part of the country which has not yet been subjected to the Government survey, the best existing maps would afford the means of fixing points with sufficient accuracy to be relied upon, subject to correction whenever the trigonometrical survey should be completed. If such maps were a little expensive at first-and we doubt whether their expense would be very materially greater than that of common maps--the additional expense would be soon compensated by the saving in the descriptions of parcels, if we were only to take into account the omission in successive conveyances of the long descriptions identifying by reference to occupancy; for it would be quite immaterial whether Blackacre was lately in the occupation of A., with a long name and designation, and formerly of B., with equally long ones, if one could, on any dispute, at once mark out the boundaries by measuring from fixed points, and so re-constructing the outline of the plot of ground designated in the conveyance

as Blackacre.

MASTER IN CHANCERY.-The Lord Chancellor has appointed Hubert Smith, Gent., of Saint Leonard's, Bridgnorth, Shropshire, to be a Master Extraordinary in the high Court of Chancery.

been thrust upon him if the plaintiff had given notice properly." In Wright v. Angle, (6 Hare, 107), the point came before Vice-Chancellor Wigram, also on a neglect to give notice of replication having been filed. His opposition to it, that the proper course is not in general Honor, being referred to Johnson v. Tucker, decided, in to nullify the proceeding, but to give time to the party entitled to notice at the cost of his opponent. In that case, the defendant gave notice of motion on the 29th October, to dismiss for want of prosecution; the plaintiff on the same day filed his replication, but did not therefore, in which the point could be tried more completely on its technical ground, because it was impossible to contend that the defendant could be, to any material extent, damnified, if time were given to him. The Vice-Chancellor said he treated the order requiring notice on the same day as directory; exist to make the course of treating the proceeding as he did not say that special circumstances might not irregular the most proper for correcting the error; but, in the case before him, his Honor saw no such circumstances. In Suffield v. Bond, (10 Beav. 331), which was cited in Johnson v. Tucker, Lord Langdale Chancellor adopted in Wright v. Angle. The point had proceeded on the same reasoning that the Vicehere arose on the filing of an answer. The plaintiff had obtained the common injunction. The defendant, on the 24th April, which was a Saturday, filed his answer, and obtained an order nisi. On the 26th he gave notice of having filed his answer. The plaintiff moved to discharge the order nisi. The Master of the Rolls, however, on the ground, that in the case before him no inconvenience had been occasioned by the omission, refused to discharge the order nisi, but made the desisted," said his Lordship, "that I ought to discharge fendant pay the costs of the application. "It is inthe order in all cases, whether any inconvenience has been created to the other side or not. I do not think that this is the necessary consequence of such an omission. It is quite true that if the Court relaxes its general rules, it will give rise to inconvenience, by the frequent discussions which will consequently arise; but