[BILL NO. 101.] COMMITTEE. (Hansard, 26 June 1862)

THE SOLICITOR GENERAL
said, he wished to add the following proviso at the end of the clause:— And if there shall be any disputed question of boundary between the applicants and any proprietor of adjoining land, which shall not have been previously determined by any competent authority, it shall be competent for the parties, or either of them, to object in writing to the determination of such question by the registrar or by a judge of the Court of Chancery under this Act; and if any such objection shall be made, the registrar shall specify upon the record of title the existence of such disputed question of boundary, and that the registration is made subject thereto.

§ MR. WALPOLE
said, the Amendment of the hon. and learned Gentleman would be a great improvement on the clause, but he had still some apprehension that it would not meet all the difficulties of the case. He feared that the result of registering boundaries would be to force the surrounding proprietors to employ solicitors to see how for their title might be affected by the party desiring to have his estate registered. The principle in all cases of that kind ought to be to avoid throwing upon parties other than those who wanted to have the benefit of the Act any legal or professional expense.

THE SOLICITOR GENEEAL
observed, 1107 that he did not think the apprehensions of his right hon. Friend well founded.

§ MR. WALPOLE
, in page six, line four, moved to insert after "solicitor" the words "or certificated conveyancer." There were two sets of clauses in the Bill tinder which acts were to be done by solicitors and other persons. When the thing-was to be done in the Court of Chancery it was clearly right that the solicitor who was employed should be the person in that case; but he thought in those cases in which the thing was to be done before the person who investigated the title, the certificated conveyancer ought to have his right secured him if the party wishing to register his estate thought right to employ him, and it was with that object he moved the insertion of the words.

THE SOLICITOR GENERAL
said, he had no objection to the proposed words being inserted.

§ MR. AYRTON
said, some difference appeared to be drawn between the provisions with regard to notice in the case of defeasible and indefeasible titles.

THE SOLICITOR GENERAL
said, the point raised by the hon. and learned Member deserved attention. His present impression was, that the Bill as it stood sufficiently accomplished the object in view; but in case it did not, it would be easy to introduce any alterations which might be requisite upon the report.

§ MR. AUGUSTUS SMITH
said, it appeared that the registrar and examiners of title were to be appointed by the Lord Chancellor. It was not stated, however, 1108 from what class of the legal profession these important officers and examiners of title should be selected, although it was provided that the registrar should be a barrister of ten years' standing. The power of the Lord Chancellor with reference to legal appointments was becoming enormous; and after the recent appointments under the Bankruptcy and the Chancery Procedure Acts, it was expedient that some restriction should be placed on that power, with the view of insuring the selection of duly-qualified persons. He would therefore propose an Amendment, requiring that the appointment of the registrar and examiners of title by the Lord Chancellor should be with the consent of the Commissioners of Her Majesty's Treasury.

§ MR. AYRTON
said, the position of registrars in Chancery at present was well defined, and there was no reason why the assistant registrars and examiners of title to be appointed under the Bill should not be barristers, solicitors, or certificated conveyancers. He should therefore move to insert the words "the assistant registrars and examiners of title shall be barristers, solicitors, or certificated conveyancers."

§ MR. WALPOLE
said, they had got to an important part of the Bill—namely, that which related to the appointment of the staff who were to carry its provisions into effect. He thought, therefore, that the Committee ought not to proceed further until they had an intimation from his hon. and learned Friend the Solicitor General as to what the probable expense of the working of the Bill would be. The Committee ought to be informed, as far as it was possible to do so, as to the number of the staff, the expense which was likely to be incurred, and whether that expense was to be met by fees, or by money out of the Suitors' Fund, or out of the Consolidated Fund.

§ MR. COLLINS
said, he hoped the Committee would accept the suggestion of the hon. Member for Truro, so that the patronage of the Lord Chancellor might be restricted. Under the Bankruptcy Act of last year a salary of £1,200 a year was to be given to a barrister, and the Lord Chancellor for the time being thought fit to appoint a person who had probably never held a brief in his life. Last year the House made a great mistake, for either the man was unfit for the work—a thing which he would not suppose—or the salary was too good. If the place did not 1109 require a man of great ability and high qualification, a person with £300 or £400 a year ought to be put in it. While that House voted the salary, the Lord Chancellor would probably place in office some relation who would be dear at a tenth of the money.

§ MR. MALINS
said, he thought that the qualification ought to go further than was proposed by the Amendment, and that a barrister of five or ten years' standing should be required, otherwise a man might be called to the Bar for the purpose of getting one of those appointments. The officers to be appointed under the clause were to be substituted for men who now performed most important duties in Lincoln's Inn as conveyancing counsel. When it was considered that every man interested in land would in the most important cases have to depend on the knowledge of those officers, the Committee would see how necessary it was that a high qualification should be required. Was the Committee prepared to leave it to the Lord Chancellor of the day to say whether the salary given should be £2,000 or £1,500 a year, or whether the men who were to fill the offices should be barristers or solicitors called yesterday? Unless they took care that proper persons should be appointed, the working of the Bill would be most mischievous. He would strongly recommend his hon. and learned Friend the Solicitor General to postpone the clause for the purpose of considering who were to hold those offices, and what was to be the qualification.

§ MR. ROLT
said, he would suggest, whether, as they were to have a registrar, examiners of title, and clerks, it would not be possible for the present to leave out assistant registrars, who would probably receive £1,200 a year each.

§ MR. PULLER
said, he was of opinion that the clauses defining the qualifications of officers would only produce mischief, as they would relieve the Lord Chancellor from a portion of the liability which would otherwise devolve upon him. It was absurd to suppose that any person other than a barrister, solicitor, or conveyancing counsel would receive any appointment, unless, indeed, it might by chance happen that a person not so qualified was peculiarly fitted for the office. It would be best to trust to the unlimited responsibility of the Lord Chancellor.

THE SOLICITOR GENERAL
observed that the Bill must be tested by its results, 1110 and it was quite impossible to say at present what would eventually be the extent of the establishment required to work the system. If it should prove successful, then, no doubt, a considerable establishment would be required; but as by the 125th clause fees, payable into the Consolidated Fund, were to be charged, it might in such case be expected to be self-supporting. Clause C enacted that the salaries should be paid by money to be provided by Parliament, and in accordance with Clause 111, the number of asssistant registrars and other officers, and the amount of their salaries, were to be fixed by the Lord Chancellor, not at his own discretion, but with the consent of the Commissioners of the Treasury. Therefore, there would exist the check of those who were responsible for the vigilant control of the public expenditure, and who had never shown an undue disposition to facilitate needless expenditure of this kind. Another check would be the necessity of applying to Parliament to vote the requisite money. It was impossible, until they ascertained how the Act would work, to form a definite estimate of the expense of the staff that would be required, but he presumed that it would not be so much as £8,000 or £9,000 a year at starting, the estimated amount under a former Bill. If the measure should prove successful, a larger establishment and a greater expenditure would then be required. With regard to defining the precise qualifications for the assistant registrars and clerks, he agreed with the hon. Member for Hertfordshire (Mr. Puller) that it would be inconceivable that persons should be appointed who did not come within one or other of the classes named in the Amendment; he was, however, opposed to any attempt to define exactly any particular period of practice as necessary to qualify for any one of the officers named. He thought it would be safer in the first instance to rely on the responsibility of the Lord Chancellor, who would be anxious to see the system work in such a manner as to reflect honour on those who had introduced the measure. Examiners of titles would, he presumed, be called in on the same footing as conveyancers were at the present time.

§ MR. SCULLY
said, he trusted that the clause would pass without any amendment; for he should like to send the Bill back to the House of Lords unaltered. The Lords had sent down a Bill establish- 1111 ing the two important principles of registration and indefeasibility of title, and he hoped the House of Commons would not "lose the sheep for the sake of a hap'orth of tar," by giving the Lords an opportunity of backing out of the important propositions they had agreed to. With regard to the assistant registrars and clerks, he thought the Bill provided sufficient security both as to the qualification of the parties appointed and the salaries; and with regard to the examiners, it would be easy to introduce a proviso to the effect that they should be barristers of a certain number of years' standing or certificated conveyancers.

§ MR. MALINS
said, he for one, was unwilling to give the Lord Chancellor for the time being, whoever he might be, unlimited discretion in making such appointments as that of assistant registrar. Practically, the responsibility which had been spoken of had no place in the making of those appointments; and as the officer in question was to have a fixed salary, he could see no reason why the same security should not be required for his competency as was to be exacted in the case of the registrar. The assistant registrar would have to examine letters and transact a variety of business of the first importance in his office. It was therefore extremely expedient that he should be a duly qualified person and a man of standing in his profession. He would remind the Committee that Mr. Hargreave, to whom reference had been made as having been appointed to the Encumbered Estates Court in Ireland, was previously well-known as a conveyancing counsel, and that his selection could not as a consequence be urged with justice in favour of the course proposed by the clause under discussion. Those being his views, the Solicitor General would, he hoped, consent to modify the clause.

§ SIR HUGH CAIRNS
said, he did not think it would be expedient to fetter the clause with a description of the qualifications of the persons who were to hold office under its operation. It was the wiser course, he thought, to place confidence in the noble Lord at the head of the profession for the time being, with whom the appointment would rest. For his own part, the circumstance that a barrister happened to be of five, or seven, or ten years, by no means appeared to him to, insure his being possessed of any particular qualification; while he was of opinion, 1112 that if the Lord Chancellor were disposed to make an unfit appointment, he could do so with less difficulty if a certain number of years' standing were required as the necessary qualification, because he would then be enabled to urge in favour of any selection which he might have made the circumstance that he had complied in making it with the Act of Parliament, and had chosen a person, who had been the time insisted on at the profession. The best security, therefore, for the making of proper appointments was, he thought, the responsibility to which his hon. and learned Friend seemed to attach so little importance. He had at first supposed that the examiners of titles contemplated by this Bill were to be officers similar to those who, under that name, were attached to the Landed Estates Court in Ireland. Such, however, it appeared would not be the case; because, while the duty of the last-mentioned officers was simply to compare the deeds with the abstract, and they were paid by salaries, these examiners were to be conveyancing counsel, to whom the title was to be referred, who were to do the very work for which the registrar was-to be appointed, and whose fees would have to be paid by the person applying for a declaration of title, in addition to the other payments which he would have to make. On both these accounts he objected to their appointment, and he must remind the Committee, that when in 1858 the Landed Estates Court of Ireland was made perpetual, that House refused to give to the Judges power to take the opinion of counsel upon titles, on the ground that it would diminish their responsibility.

MR. AYRTQN
said, he would remind the Committee that the Act regulating the registry in Chancery required that the assistant registrar and all persons capable of succeeding to that office should be solicitors. He did not see why a similar safeguard should not be provided with regard to the registry created under this Bill.

§ MR. HIBBERT
said, he wished to ask whether these appointments were to he made on the passing of the Bill, or only as business required them?

THE SOLICITOR GENERAL
said, that he had no doubt that it was intended to make the appointments from time to time as the state of business rendered them necessary, but he could not undertake to state what staff might be required at first. The remarks of his hon. and learned 1113 Friend the Member for Belfast, with reference to the examiners, were worthy of consideration; but he would not then enter into the subject, because the clauses referring to it must necessarily be postponed, and he should have an opportunity of conferring with his noble Friend the Lord Chancellor upon the matter.

§ MR. HADFIELD
said, he regretted that no means should be afforded for registration in the country, but that all business connected with titles should be Centralized in London.

MR. HENLEY
said, he hoped the Solicitor General would reconsider the superannuation arrangement proposed by the Bill. If a man was only fifty years old, and was able to work, why should he be superannuated merely because he had performed twenty years' service?

THE SOLICITOR GENERAL
said, he thought it would not be expedient to enter at that time upon the question of superannuation.

§ MR. WALPOLE
said, that further explanation was necessary as to the remuneration to be given to the officers under the Bill. There was obscurity as to the different functions these different officers were to discharge, and he thought it should be stated what were the functions respectively of the examiners and registrars of titles.

THE SOLICITOR GENERAL
said, he would make inquiry in the proper quarter; He understood that the functions of examiners would include every branch of examination as at present discharged by examining counsel of the Court of Chancery and solicitors. The clause, however, involved nothing except what was contained all through the Bill. Therefore he trusted the Committee would pass it, and it, would be very easy to modify it on the report, if necessary.

§ SIR HUGH CAIRNS
said, that if his hon. and learned Friend were right as to the duties proposed to be cast upon the examiner of titles, they were inconsistent in themselves. If he were to compare abstracts of titles with the originals, that was a duty properly devolving upon an attorney's clerk, while the duty of examining titles ought to devolve only upon a conveyancing counsel.

§ MR. MALINS
said, he would express a hope that his hon. and learned Friend would postpone the clause. It could not be discussed properly on the report.

§ MR. AUGUSTUS SMITH
said, he would move that the words "with the consent of Her Majesty's Treasury," be added to the clause which vested these appointments in the Lord Chancellor.

§ MR. PULLER
said, he thought it much better that the Lord Chancellor should bear the whole responsibility, and that the First Lord of the Treasury should represent a sort of court of appeal.

§ MR. WALPOLE
explained, that the consent of the Treasury was only necessary to the amounts of the salaries. The appointment and removal of the officers was properly under the cognizance of the Lord Chancellor.

§ MR. W.B. BEAUMONT
said, he thought that some further protection would be required for the interests of the owners of mines and minerals.

THE SOLICITOR GENERAL
said, they had not only the ordinary protection given under the 12th section, but they had it in their own hands to protect themselves by entering a caveat with the registrar against the title of any other claimants. He should propose, however, on the report to introduce words for the still more effectual protection of the owners of mines and minerals.

MR. ATRTON
suggested, that those who were brought into the registrar's office to defend their rights should have their costs paid.

§ MR. SCULLY
said, there would be no difficulty in protecting mines, whether on the ground or under the ground. He would venture to congratulate the House oh the prospect of so important and useful a Bill becoming law.

SIR JOHN HANMER
said, he regretted that so very important a branch, of real property as minerals was not directly mentioned in the Bill. In many parts of Wales and of the north of England the mines and minerals belonged to one person, the surface to another, and sometimes the lordship to a third. If a Bill of this kind were to be satisfactory to the owners of real estate all over the country, this case ought to be particularly stated, and to be dealt with by express words. He trusted that the Solicitor General would give notice of his intention, so that the owners of mines might take advice upon any new clause, because a small 1115 oversight would be the source of more evil than could be easily conceived.

THE SOLICITOR GENERAL
said, he would give early notice of what he intended to propose on the report. He would move an additional clause to meet the case of lords of manors. [Sir JOHN HANMER: That will not meet the case.] He would only remark at present, that if an owner's title were patent and on the deeds, his case would be provided for by the Bill; if it were latent and not upon the deeds, he must know his title better than anybody else, and might protect himself by entering a caveat.

§ MR. AYRTON
said, that in some cases the fee of the surface was in the hands of one person and the fee of the minerals in the hands of another. The two were distinct; but the Bill seemed ^o treat the property in minerals as ancillary to the property on the surface.

§ MR. WALPOLE
said, he was very anxious that the Bill should succeed. He did not think a greater boon could be conferred on landed proprietors than to give them the means of obtaining an indefeasible title. If, however, the measure imposed upon those who were unwilling to avail themselves of it the necessity for employing a professional gentleman and of incurring expenses in order to put themselves in as good a position as those who had taken advantage of its provisions, he believed the Bill would break down, and that Parliament would have again to be applied to.