bers of the House of Commons, are generally of that radical, sweeping character which is now too popular; but we do not remember that the name of Lord St. Leonards, or of any other of our Law Lords, was ever seen on the back of one of those gigantic bills in which the skill of Sir Hugh Cairns and Sir Richard Bethell has been shown, and which have attempted in multitudinous clauses to destroy and re-create an entire branch of our law. The term "Lord St. Leonards' Act" applies equally to three important statutes, by which alone in the last six years has any amendment of our real property and equity law been effected (18 & 19 Vict., c. 15; 22 & 23 Vict., c. 35; and 23 & 24 Vict., c. 38); but their gigantic competitors have never emerged from that lower assembly to which they owe their birth, nor scaled the heights of the House of Lords.

Vis consilî expers mole ruit suâ :

Vim temperatam Di quoque provehunt.

Let us examine the well-intentioned weapon which has this year descended upon our laws. There is no want of guides to assist us in this examination; at the head of this article we have given the names of three excellent editions of the statute in question. Of these editions we prefer for practical purposes that by Mr. Hunter, who has here (as in his edition of the former statute) displayed a marvellous tact in giving just enough in his introductions and notes to explain the object and meaning of each section, without wearying the reader with discussions on abstruse points of law on the one hand, or leaving him in the dark, on the other hand, as to the interpretation to be put on the wording of the several enactments. And if any fault can be found with the edition by Mr. Vaizey, or with that by Mr. Jemmett, it is that the notes in the former are somewhat too diffuse, while those in the latter are perhaps too meagre.

The two last-named editions give us copious information as to the changes made in the bill during its passage through the House of Commons; and though for our present office of critics it is most useful to have thus set before us what provisions are to be attributed to Lord St. Leonards, and what to the various, VOL. X. NO. XIX.

G

members of the Lower House who carried amendments to his measure, yet we doubt the utility of this to the student or the practising lawyer; and we think Mr. Hunter has exercised a most wise discretion in excluding from his pages matter of mere parliamentary proceeding, which, however curious or interesting in an historical point of view, throws no light on the meaning of any one section of the statute.

We will now briefly advert to each of the fifteen sections of which this Act is composed.

I. REGISTRY OF WRITS.-The effect of the first and second sections may be shortly described as follows:-Hitherto, a creditor having obtained and registered a judgment, had in fact a continuing security for the amount over any real property of which his debtor was or might become possessed; such security being subject to be displaced only by a sale or mortgage to a bona fide purchaser or mortgagee without notice. Now, this is so no longer; no judgment entered up after the passing of the Act (23rd July, 1860), is to affect any lands in the hands of a purchaser or mortgagee, unless a writ of execution has been actually issued and registered at the time of his paying his money and taking his conveyance or mortgage, and, moreover, such writ to be of avail must be executed within three months after registration.

Now, here we meet with a difficulty; the Docketing Act of William and Mary preserves lands in the hands of purchasers from being taken in execution upon undocketed judgments, and the statute 2 & 3 Vict., c. 11, prohibits the future docketing of judgments. Hence it seems to follow, that lands in the hands of purchasers can never now be taken in execution, but that, as against them, the judgment creditor is left to his equitable remedy only. It is now enacted that actual execution of the writ within a limited time is a necessary condition to the creditor's right, and yet it is not easy to see how this condition can be fulfilled. The docketing act remains unrepealed, and the purchaser is protected by it, unless the creditor observe the condition imposed by it; this is rendered impossible by the Act of 2 & 3 Victoria. The words of the present statute are writ, or other due process of exe

cution of such judgment statute or recognisance,' and 'such execution, or other process, shall be executed and put in force;' it is impossible to contend that these words refer to the prosecution of the creditor's equitable remedy; process is, ex vi termini, a proceeding or step in an existing suit or action.

The chief practical effect of the section will be to prevent for the future the use of judgments as a substitute for equitable mortgages. It is certainly an abuse, in the etymological sense, that the procedure of courts of justice, which is primarily intended for the trial of disputed questions of fact or law, and for securing to every man the speedy attainment of his right, should be applied to the purpose of affording a safe and convenient form of investment; but every part of the constitution of the country is full of abuses in this sense, and we do not know that any appreciable mischief results.

Lord St. Leonards proposed that these sections should apply not only to judgments entered up after the passing of the Act, but, after the 1st November, 1860, to all judgments entered up before the passing of the Act. The consequences of the amendments made in the House of Commons are, that purchasers and mortgagees must now make one search more than they have hitherto been advised to make. They will search for judgments under the old law, and for writs of execution under the new law. These sections, therefore, seem to operate as an additional impediment to the sale or mortgage of real property.

II. HEIRS, &C.-The difficulty which we have just noticed, arises from the very inartificial frame of the statute 2 & 3 Vict., c. 11; this has also rendered necessary the 3rd and 4th sections of the present Act. We neither know, nor care to inquire, who is responsible for the former statute; but we think that if he were living, and heard of the decision in Fuller v. Redman,1 he must have wished that his many other duties had left him time to bestow a little more care upon the wording and effect of his bill. Anxious and prolonged consideration of the law of judgments, as affecting purchasers of land, seems to have rendered him for the

126 Beav. 600; 29 L. J. Ch. 324.

time oblivious of the existence of any other class requiring a similar protection. The whole system of the registration of judgments originated in the reign of the present sovereign, and superseded the plan formerly adopted for the same object. But the old plan included in its protection, not only purchasers of land, but also heirs, executors, and administrators, who were liable to be prejudiced by the existence of secret judgments. Their duty was to pay all known debts of a superior before paying any of an inferior class; and the absurd theory that a judgment, being a record, was notice to all the world, prevented their alleging ignorance; hence an executor who had duly paid all debts of the existence of which he was aware, might, but for the protection of the docketing act, be compelled to pay them over again to a creditor claiming under a judgment, of which, till then, the executor had never heard.

When, therefore, the statute 2 and 3 Vict., c. 11, swept away the docketing act as part of an obsolete system, heirs, executors, and administrators, became again exposed to this danger; and in the case we have just mentioned, the Master of the Rolls felt unable to free an administrator from the position in which the legislature had placed him. To prevent the recurrence of such scandalous injustice, the 3rd and 4th sections of the Act now before us, take away this priority from all judgments not registered, and re-registered in such a manner, that a search through five years of the register will disclose all previously unknown judgments, of which account must be taken in the administration of an estate.

Mr. Jemmett suggests (p. 6) that heirs, executors, and administrators, are sufficiently protected by the clauses of the modern statutes, which deprive unregistered judgments of their priority, as against purchasers, mortgagees, and creditors; "for," says he, "if creditors were protected, how were executors, for example, who are in effect creditors," to be affected? To this it may be sufficient to answer that the contrary was held in Fuller V. Redman, in which case this argument does not appear to have been adduced; moreover, it appears to be founded in forgetfulness of the fact, that where priority is given to purchasers, mortgagees,

and creditors, in the registration acts, those creditors are clearly meant who have obtained a statutory charge on the land by means of a judgment. These acts, in fact, in no way affect rights after the death of the debtor.

On the wording of the sections in question, we must express our regret that the old, and in fact obsolete, word "docket" is used for an entry which is, in fact, identical with that required by 1 & 2 Vict., c. 110, s. 19, to which the term "registration has hitherto been invariably applied. This seems to us to be a further and altogether useless complication of a subject already disgracefully complicated.

III. WAIVER. SCINTILLA JURIS.-The 6th and 7th sections of the statute are devoted to making certain enactments relative to the waiver of conditions in leases, and to the doctrine of scintilla juris. The Act of last year was rendered imperfect by the omission from it of what is now the 6th section of the Act of the present year. The bill sent down from the Lords last year, contained the clause which has now received the royal assent, but it was then struck out in the Commons, under the notion, as Mr. Jemmett suggests (p. 7), that it only expressed the existing rule of law. This adds another to the almost countless instances in which an opinion has been hastily taken up by some member of the House of Commons, and as hastily adopted in committee, in utter forgetfulness of the fact, that every bill worth passing at all, is an integer of which each of the parts at once depends upon the rest, and is at the same time necessary to their efficient existence. We have all heard of the great painter, who submitted his work, not only to the criticism, but also to the amendments of all the passers-by; we could wish that the ill success of those self-constituted critics, had deterred their successors at the present day from retouching the product of the skill of Lord St. Leonards. Perhaps our readers may remember occasions when a draft, which they had settled, has been used to illustrate the skill of some solicitor's clerk; if so, they may be able to sympathize with his lordship. However, the mischief is now cured.

With regard to the section relating to the scintilla juris, it was