nifest a delusive appearance of means, and thereby enhance or support his credit; and is not this the very mischief which the enactment was designed to remedy?

It may be said that in the mercantile community generally, where property is represented by visible symbols capable of transfer, the possession of these symbols is the received token of ownership-and no doubt in the case we have supposed the holder of the certificates would on inquiry be regarded as the person really and beneficially entitled to the shares. It may be further urged that no reputation of ownership is, in fact, attached to the mere title recorded in the books of the Company-a record accessible only to its own officers-nor even to the occasional exercise of the rights of a proprietor and the receipt of dividends; and that as the question whether the bankrupt was the reputed owner is one of fact to be gathered from circumstances and the course of dealing, the true result is, that the bankrupt had not, after parting with the certificates, any possession of the shares as reputed owner. That there is much truth in this observation, and consequently much weight in the conclusion drawn from it, we are not disposed to deny. Still as there is unquestionably some show of ownership left in the trader, and that by the voluntary act or forbearance of the true owner, and as this, to some extent, may and does aid in keeping up a delusive appearance of means not existing in fact, we cannot help thinking it the better opinion that the case is within the enactment. Viewing the question therefore even independently of authority, we should ourselves be disposed to hold that a buyer or lender cannot safely take a transfer or pledge of shares from a trader by the mere delivery of the certificates, and that to make the security effectual he must, at some time before an act of bankruptcy, take such means as are in his power to put an end to the reputed ownership of the party pledging or transferring them.

If we turn to the reported cases we shall find indeed little that is satisfactory on the point; for there seems to be no settled principle of decision pervading them, each judge acting and decreeing upon a general view of the circumstances of the particular case as they chanced to affect his own mind or impressions. Neither, perhaps, is there any case in which the exact question which we have discussed has been distinctly

raised. But the current of authority certainly sets strongly towards the point to which our analysis has led us, and there can be little doubt, we think, that if the question were directly presented it would be decided accordingly. A reference to the cases will be found in the note.1

That there is inconvenience in this conclusion-that it throws upon the holder who may be desirous of obtaining temporary accommodation on the faith of such securities the embarrassing alternative of either disclosing his difficulties or foregoing the advantage altogether-and that the value of shares as an investment is thereby greatly lessened, we are most ready to admit ; but we fear that the Courts have already gone too far in their extension of the doctrine of reputed ownership to recede now out of any regard to mere notions of expediency.

As to the step which should be taken by the holder of the certificates to confirm his title, or at all events, to divest the pledger of his reputed ownership, it may be laid down generally, that a formal notice to the Company of the transfer is all that is requisite. There is, however, a case decided by Lord Lyndhurst, and confirmed on appeal by Lord Brougham-which seems to throw some doubt on this proposition. There the

1 The general doctrine as to notice of assignment in order to devest the reputed ownership will be found in Ryal v. Rowles, 1 Ves. sen. 367; 1 Atk. 177; Gordon v. East India Company, 7 T. R. 228; Ex parte Monroe, Buck, 300; Ex parte Barton, 1 G. & J. 207; Ex parte Usborne, 1 G. & J. 358; Dean v. James, 1 Ad. & E. 809 (n); 1 N. & M. 392; Buck v. Lee, 1 Ad. & E. 804. These cases relate to the assignment of debts and bonds. The same doctrine as applied to assignments of policies of insurance is found in Ex parte Colvil, Mont. 110; Williams v. Thorp, 2 Sim. 259; Ex parte Stephens, 4 Deacon & Ch. 117; Ex parte Tennyson, Mont. & Bl. 67. The cases as to shares are Ex parte Masterman, 2 Mont. & Ayr. 209; Ex parte Watkins, 1 Mont. & Ayrt. 365; reversed on appeal, ib. 689; 4 Deacon & Ch. 87; Nelson v. London Assurance Company, 2 Sim. & Stu. 294; Ex parte Plant, 4 Dea. & Ch. 160; Ex parte Ord, Dea. 166; and Ex parte The Lancaster Canal Company, Mont. & Bl. 94; ib. 112; 1 Dea. & Ch. 411.

There is likewise a class of cases as to dock warrants and other symbolical property passing by delivery, as to which it seems that where they are the sole evidence of ownership the delivery of the warrant, &c. is sufficient, without notice to the Dock Company, &c., Lucas v. Dorrien, Taunt. 279; Greening v. Clark, 4 B. & C. 316; Wilkinson v. Reay, Dan. & Ll. Merc. Cases, 200; Ridout v. Lloyd, Mont. 103. In these cases, however, it is clear that the transferrer can obtain no credit or reputation of ownership by the mere fact of the goods being entered in his name in the dock or bond warehouse.

3 Ex parte The Lancaster Canal Company, ubi ante.

Company themselves were the parties claiming the equitable lien, and had necessarily therefore notice of the trust; but inasmuch as with their consent and permission the registered proprietor was suffered to appear to the public as beneficial and unqualified owner of the shares, the case was considered as falling strictly within the letter, as it was undoubtedly within the spirit, of the enactment, and the right of the assignees prevailed. But though it can hardly, we think, be denied that this decision was, under the peculiar circumstances, right; yet, properly considered, it does not militate against the rule that notice to the Company by a stranger claiming to be beneficially entitled is sufficient to defeat the right of the creditors -if not as taking away the reputation of ownership from the apparent proprietor, at all events as negativing "the permission of the true owner."

Nor does the fact that the Company refuses to recognize or act upon such notice dispense with the formality of giving it —for here again, although it may be ineffectual to prevent the exercise of an ostensible ownership by the party in whose name the shares still remain, it serves, at least, to indicate that the true owner has done all in his power to put an end to such apparent ownership, and thereby to negative any idea of consent on his part.

L.

ART. IX.-COSTS IN TRESPASS TO REAL PROPERTY.

IN a former paper on this subject,1 we stated that by reason of the operation of the new Pleading Rules, and of certain decisions upon them, a new law of costs in cases of petty trespass to real property had been introduced, the effect being that the statute of the 22 & 23 Car. II. c. 9, s. 136, was virtually repealed. Such appeared to be the result of the decision of the Court of Exchequer, in the case of Hughes v. Hughes. It had however escaped the notice of the counsel in that case, nor did it occur to the Court, that, inasmuch as by the provisions of several previous statutes, in particular by the 11 Geo. II. c. 19, s. 21, special matter was allowed to be proved

1 Vol. XV. p. 115.

22 C., M. & R. 663.

under the plea of not guilty in trespass, that plea might, therefore, by possibility still put the freehold or title in question; such cases being excepted by the proviso in the 3 & 4 Will. IV. c. 42, s. 1, out of the enacting power of the Judges by the rules to be made under that act. And accordingly, when the same question was again raised before the Court of Common Pleas,1 their attention being called to the misapprehension on which the decision in Hughes v. Hughes had proceeded, it was clearly held, that on not guilty pleaded to trespass quare clausum fregit the plaintiff cannot have his full costs any more than before the new rules, without a certificate under the statute of Charles II. This decision has been still more recently confirmed by the Court of Exchequer. The law, therefore, as to this point, has now settled back to the state in which, before the new rules, a long series of decisions, however inconsistent they might have been with the object and language of the statute, had left it.

In the case last referred to, besides the plea of not guilty, there was (among others) a plea of leave and license; on which, therefore, the freehold could not come in question; consequently, according to the uniform result of the decisions, the plaintiff, succeeding on this issue, became entitled to the full costs of the cause. A chivalrous attempt was however made by the learned counsel for the defendant (Mr. Maule), to evade the force of their authority, on the ground that the earliest of them had been decided before the privilege of pleading double was given by the statute 4 Anne, c. 16, and that the later decisions had proceeded on the bare authority of the former, without regard to the alteration introduced by that act; that under it, each issue being triable as a separate cause, it was reasonable that the costs of each should be governed by the nature and the result of it; that thus the issues should be ranged, according to their effect, under the statute of Elizabeth or the statute of Charles respectively; the plaintiff not being entitled to full costs, unless the pleadings upon the whole record excluded the possibility of the title coming in question. The Court admitted, that if the matter were res integra, it would seem not unreasonable so

1 Dunnage v. Kemble, 3 Bing. N. C. 538.

to hold; but that the weight of authority to the contrary, derived from cases subsequent to the statute of Anne, was so great that it was impossible now to introduce a different principle of decision.

It may be remembered, that on the argument in Hughes v. Hughes the Court intimated that a case would still remain in which it might be doubtful whether the freehold came in issue, viz. where there was a plea denying that the close in question was the plaintiff's close. In our former remarks on this subject, we observed that as that was a case which must of necessity soon be settled by a decision one way or the other, it abated nothing from the effect of the new law which we supposed to be established by the pleading rules. Accordingly, in the same case of Purnell v. Young, it was decided that this plea amounts, in every case, to a denial of title. "It is a denial of the plaintiff's title to the close to the same extent that he would have been obliged to prove it before under the general issue; that is, it is a denial of possession, if the defendant was a wrong doer; if otherwise, of the right to the possession; but, in either case, it is necessarily a denial of title; for even in the former case possession is title against a wrong doer; and therefore the plea raises a question of title in the action, and prevents the judge from certifying under the 43 Elizabeth," to deprive the plaintiff of costs. It will henceforth, therefore, (as Mr. Baron Parke added,) be prudent for defendants in actions of trespass of a trifling nature to abstain from denying that the locus in quo is the plaintiff's.

In Purnell v. Young, however, the plea of leave and license clearly excluded the operation of the 22 & 23 Car. II. c. 9, and it did not become necessary directly to decide whether, where a plea denying the close to be the plaintiff's is not accompanied by any plea which excludes all questions of title, a certificate under that statute would or would not be inoperative. The language of the statute is, that the plaintiff shall not recover more costs than damages, in case the latter be under 40s., unless the judge shall certify that "the freehold or title of the land mentioned in the declaration was chiefly in question." On a plea of liberum tenementum, there can be no doubt that the freehold or title is chiefly, nay solely,