WITH reference to the paragraph in our last issue wherein we notified the appointment of Mr J. Gordon Dow as having been conjoined with Mr Maxwell as Joint-Town-Clerk of Crail, these gentlemen being also Joint-Town-Clerks of Anstruther-Easter, Anstruther-Wester, and Kilrenny, we understand that there are no other Town-Clerks in Scotland who are TownClerks of four separate and distinct burghs. GEO. V. CAP. 46), SECTION 3.—Held that where several works are included in one volume the royalty is to be calculated on the price of the volume, and that it is not necessary to establish the price at which each particular work is published. THE death of Mr James R. Menzies, writer and N.P., Glasgow, occurred at his residence 44 Athole Gardens, Glasgow, on 5th June, A after a brief illness. Mr Menzies, who was fifty-three years of age, was a native of Glasgow, and was educated at Fettes College and Glasgow University. He served his apprenticeship with the firm of John Steuart & Gillies, writers, Glasgow, and maintained his connection with that firm throughout his professional life, being assumed a partner of the firm in 1918. He was admitted a law agent in 1899, and was also a member of the Faculty of Procurators, Glasgow, and of the Royal Philosophical Society of that city. Mr Menzies was specially well versed in company and shipping law. DECISIONS OF THE ENGLISH Hyman v. Steward. WAR-EMERGENCY LEGISLATION- -STATUTORY RENT RESTRICTION-PREMISES TO WHICH APPLICABLE SHOP OR DWELLING-HOUSE -INCREASE OF RENT AND MORTGAGE INTEREST (RESTRICTIONS) ACT, 1920 (10 & 11 GEO. v. CAP. 17), SECTION 12 (2).-Premises were let consisting of a shop and living-room behind it on the ground floor, a kitchen in the basement, and on the first floor a sitting-room, two bedrooms, and a store. The tenant and his wife at first lived in the premises, but later went to another house. They took meals at the original house, and the tenant sometimes slept there. Held that the tenant was still protected by the Act.-K.B. Div. (Salter and Green JJ.). -8th May 1925. Osbourne v. J. M. Dent & Sons Ltd. COPYRIGHT LITERARY PROPERTY REPRODUCTION OF COPYRIGHT WORKS AFTER AUTHOR'S DEATH-ROYALTIES-SEVERAL WORKS INCLUDED IN ONE VOLUME-PRICE ON WHICH ROYALTY TO BE CALCULATED COPYRIGHT ACT, 1911 (1 & 2 LAW LIBRARY. BOOK NOTICES. Concise Treatise on the Construction of Wills. tion as a Chancery lawyer, and his work on the The late Mr Hawkins enjoyed a high reputaconstruction of wills has been widely used editor has in this edition adhered to the method and often quoted in the English Courts. His adopted in the second edition of distinguishing clearly in the text between the original words of the author and the editorial accretions. The most important changes in the law which have had to be taken into account have been those which are introduced by the Law of Property Act, 1925. The embodiment of these and other changes in the law will give a new lease of life to a leading text-book. The Grotius Society maintains its useful work as a medium for the interchange of ideas among those interested in the problems of international law, and no student of that subject can fail to find interest in the reprint of the papers read before the Society. The topics are for the most part practical and essentially modern. More than one essay in this volume treats of the international position of the United States at the present time; and other contributors deal with European problems arising from the recent peace settlement. We are glad to commend the volume for the interesting and informative reading which it offers. EDITOR'S NOTE. The General Editor will be pleased to consider Articles of Legal Interest, and if accepted for publication these will be paid for, but no responsibility is undertaken for the safe custody and return of MSS. SOME ASPECTS OF RENT RESTRICTION Woodhead v. Putnam ([1923] 1 K.B. 252); LAW. By THEо. SOPHIAN, of the Inner Temple, Barrister-at-Law. III. APPORTIONMENT. Section 12 (3) of the Act of 1920 provides for the apportionment of the standard rent or rateable value in cases where apportionment is necessary, but no indication whatever is given as to the circumstances in which an apportionment must be made, and for this purpose it is necessary to refer to the decided cases. In the first place, it should be observed that the moment the comprising property acquires a standard rent, each part of the comprising property acquires a standard rent as well; but, whereas the standard rent of the comprising property is ascertained, the standard rent of each part is merely notional until it is determined by means of apportionment. Thus, assume that a house consisting of two floors is let in August 1914 at a rental of £100. The house as a whole has a standard rent, i.e. £100, so also has each floor and each room in each floor a standard rent, but the notional standard rent in these latter cases can only be determined by means of apportionment. It was at one time considered that there would be no jurisdiction to apportion in such cases, where part of the comprising property was let at a time when the comprising property itself was not within the Acts, and this view of the law was put forward by Lord Justice Scrutton in Sinclair v. Powell ([1922] 1 K.B. 393). Thus, for example, according to this principle, if premises with a standard rent and rateable value of over £105 were split up into flats, the standard rent of each flat would be the rent at which each was let separately for the first time, and there would be no power to apportion. The Courts have, nevertheless, refused to adopt the above-mentioned principle, and have in effect decided that even in such cases, where the letting of the part takes place when the comprising whole is not within the Acts, an apportionment may be made. A fortiori a case for apportionment may arise where there is a letting of the parts at a time when the comprising property is within the Act (Woodward v. Samuel, [1920] W.N. 82; Sutton v. Begley, [1923] 2 K.B. 694; Sinclair v. Powell, supra). With regard to the principle mentioned above, that the Court is not prevented from making an apportionment by reason only of the fact that. the letting of the part took place at a time when the comprising property was within the Acts, reference may also be made to Barrett & Evans v. Hardy Bros. (41 T.L.R.. 426); Phillips v. Potter (ibid. 460); and it is to be observed that the objects with which an apportionment may be made in such circumstances are not only to determine the correct statutory rental for the part in question, but even to determine whether the standard rent of the part, as determined by apportionment, comes within the statutory limits, and thereby brings the part itself within the operation of the Acts. Nor does it appear that this power of apportioning is confined merely to cases where the comprising whole is outside the Acts by reason of the standard rent thereof being beyond the statutory limits, since in Phillips v. Potter it appears to have been decided that there might be an apportionment, even where the comprising property was not within the Acts by reason of other matters than that the standard rent or rateable value thereof exceeded the prescribed limits. Thus Mr Justice Salter is reported in Phillips v. Potter (p. 461) as having said: Suppose that in a district to which section 12 (2) (c) applies, a tenant was paying £80 a year on 3rd August 1914 for a cottage, a cowshed, a pasture field, and the use of a few cows. Suppose that in 1921 the cottage is let separately. It is obvious that the cottage was let in August 1914, as part of the whole, for much less than £78 a year. It is a dwelling-house to which the Acts apply. Is the tenant or the landlord of the cottage entitled to apportionment of the £80 to determine how much of it was paid for the cottage in August 1914? In my opinion either is so entitled. The comprising property is a house, a shed, a field, and an interest in chattels. No question can arise whether this is or ever was a dwelling-house to which the Acts apply. Can it then be said that if the comprising property, instead of being a mixed property of this kind, had chanced to be a dwelling-house, there would be no right to apportionment? I do not think so." One word of warning is perhaps necessary. The above principle should be used in the light of the express provisions of section 12 (2) and section 12 (8) of the Act of 1920, and it should be noted that the unit for the purposes of the Acts may be not only the whole of a house, but also part of a house, or even rooms therein, so that if the part has been let separately at a material date, e.g. 3rd August 1914, that part will have an independent standard rent of its own which can only be ascertained by reference to the separate letting in question of such part. Another interesting question that calls for consideration is the effect of a reconstruction of the premises where the reconstruction only affects part thereof. For example, assume vinced that his idea that there are any exceptions at all rests on a misconstruction of the section, for certainly it is regrettable that such a sensible and useful rule should be at all restricted in its application. The difficulty arises from the precision with which section 3 is expressed. In the case of irredeemable rights the only reference is to a that premises consist of basement, ground floor, first, second, and third floors. The first, second, and third floors are altered by reconstruction into three separate self-contained flats. It is clear, on the authority of Sinclair v. Powell, that there can be no apportionment in respect of any of these converted flats, and that the standard rent of each, will be the standard rent at which each is let for the first" disposition" granted by a person uninfeft, time after the conversion. But what of the basement and ground floor, which have not been affected in any way by the reconstruction. It has been decided by the Court of Appeal in Abrahart v. Webster (41 T.L.R. 44), overruling the Divisional Court on this point, that there may be an apportionment notwithstanding, in respect of that part of the premises which has not been affected by the conversion. If, however, it can be shewn that the unaltered portions of the premises derive some benefit from the alterations made to other parts, then apparently no apportionment can be ordered (Stockham v. Easton, [1924] 1 K.B. 52). and in the case of heritable securities the only deeds mentioned are "assignation, discharge, or deed of restriction.' It may be admitted that it would not be unreasonable to read "disposition" as covering every deed dealing with a property right, and especially every deed where the estate is actually transferred, whether the word "dispone" be used or not. In like manner, while " assignation" and "discharge are words of precision, one might be disposed to say that "restriction would cover a good deal, and need not necessarily be confined to the case of letting out part of the property from a security. But then, unfortunately, the In conclusion, reference might be made to surrounding circumstances are singularly unBainbridge v. Conydon (41 T.L.R. 480), which favourable to these suggested liberal construcdeals with the principle of apportionment to tions. As regards "disposition," the later be applied where the rent is a composite one. language of section 3 itself seems to point to In such a case the Divisional Court held that a strict reading. That is greatly emphasised the apportionment had to be made with reference by the terms of the relative Schedule A which solely to the tenancy, at the material date, of the assumes a dispositive clause and a term of entry. whole, and that no consideration could be paid Then the word "disposition " is not dealt with to the added amenities which the tenant of the in the interpretation sections of any of the Acts part, in respect of which the apportionment of 1868, 1874, or 1924. Not only so, but the was being made, happened to be then in enjoy-interpretation section of the 1868 Act (carried ment. A similar principle appears to have on into the 1924 Act) draws a marked distincbeen applied for the purpose of determining tion between "conveyance" and "disposition." the "net rent" in Westcott v. Bowes (ibid. 332)." Conveyance" is there adopted as a statutory NON-COMPLETION OF TITLE. The principle or rule embodied in section 3 of the 1924 Act is, perhaps, the most useful innovation introduced by that Act after the radical curtailment of documents of transmission and extinction of heritable securities. As is now well known, section 3 dispenses with completion of title and allows full effect to deeds granted by persons uninfeft, provided the title is deduced in a simple manner in the deed. The deed so granted then authorises infeftment of the grantee de plano. This applies both to irredeemable rights and to heritable securities. It may, or may not, have been intended that the new rule should be of universal application; but however that may be, the fact is that consideration and practice go to shew that there is quite a number of apparent exceptions where the rule does not apply, and the purpose of this article is to deal with these exceptions. The writer would be extremely glad to be con 66 label of the very widest significance, covering Taking property rights first, it is readily and with pleasure admitted that section 3 is not to be read in any spirit of slavish bondage to the mere word "disposition." The word "dispone " has not been essential since 1874, and therefore, if a deed is a conveyance or transference, it matters not whether the word 66 dispone" be in the body of it, or the word "disposition" on the back of it, or not. That may enable some of the cases mentioned below to pass muster. Indeed, it may be possible to put it even more strongly than that, for it may be contended with much force that, if the section can apply in the absence of the word "dispone," multo magis must it apply whenever that word is present. Passing to particular instances: with principle that any deed granted for the purpose of creating, or modifying, or extinguishing a servitude should be based upon the infeftment of the granter. Further, those deeds are not dispositions. For those two reasons it seems that section 3 can have no application. 7. Waivers. Notwithstanding section 9 of the 1924 Act, deeds or minutes of waiver will continue to be obtained from superiors with 1. Original Feu-rights, whether taking the form reference to, e.g. delay in recording the grant of feu-charters, feu-contracts, or feu-disposi- beyond the time limit therein prescribed. Not tions. These deeds necessarily all contain only so, but, whether based on sound practice dispositive clauses and clauses of entry, express or not, it has been, and is, not uncommon to or implied. Accordingly, the opinion is ex- have writs of this nature for the purpose of pressed that these are all " dispositions" in the varying the conditions of the feu. All these sense of section 3, notwithstanding the separa- seem to be in the same position as the documents tion of charters and dispositions in the inter-referred to in the two preceding paragraphs and pretation section of the 1868 Act under the head of conveyance.' If this be correct, it is assumed that the same would apply to charters of novodamus, 2. Writs of Clare Constat.-Here, on the other hand, it is thought that section 3 can have no application, both because those writs are in no sense dispositions, and also because it is understood that it is an essential condition that the granter of such writs shall be infeft. As to that it is to be noted that the scheme of section 3 is, not that the granter obtains a constructive infeftment, but that the grantee obtains infeftment notwithstanding that the granter is, and continues, uninfeft. 3. Contracts of Ground Annual.-The application of section 3 is here absolutely clear, for those deeds are simply dispositions under real burdens. No new estate is created, and the deed simply transfers or dispones the existing estate. 4. Leases. It is thought to be clear that section 3 cannot apply, whether the lease is registerable under the 1857 Act or is not of that nature. Leases of either kind are not dispositions of land, but are really personal contracts in relation to land. Further, it is a condition of any lease being valid against singular successors of the lessor, that he shall have been infeft. It is also to be remembered that successors of the lessor cannot insist in an action of removing without infeftment. 5. Changes in Reddendo, including (1) allocation of feu-duty; (2) commutation of casualties; (3) discharge of casualties; (4) commutation of carriages and services; and (5) conversion of grain feu-duties. It is understood that in all those cases the infeftment of the superior is a necessary condition; and if so, section 3 cannot apply. The same conclusion would follow from the consideration that none of these writs is a disposition, not even on the most liberal conception of that term. 6. Servitudes. It seems to be in accordance for the same reasons. Turning to heritable securities the position may be illustrated by the following instances: 1. The Original Bond. Probably few will maintain that section 3 can apply to the granting of a bond and disposition in security, so as to enable the lender to obtain de plano infeftment under it if the borrower is not infeft, and though in the bond the borrower's title is deduced. Heritable securities are dealt with in section 3 by themselves, and the only deeds there mentioned are assignations, discharges, and restrictions. This seems to be a deliberate exclusion of the original bond itself. It would be a bold argument that would bring in the bond as a disposition." No doubt it is a disposition though under reversion, but the view is submitted that it is not a disposition in the conception of section 3. It must be admitted, however, that this case demonstrates the difficulty of construction of the word "disposition. in that section. 66 2. Postponements.-One would like to think that deeds of postponement might pass under section 3 as restrictions, which in a peculiar sense they are; but, for the reasons already indicated, it is thought that that argument cannot be maintained. Apparently, therefore, the granter of a deed or clause of postponement must be infeft. Deeds of postponement are nowhere referred to in the Act nor, so far as known, in any other Act, and there is no statutory form. Accordingly, it is thought to be clear that they may be allowed the benefit of the other simplifications introduced by the new Act, namely, the omission of all reference to the property and the omission or simplification of deduction of title when the granter is not the original creditor. 3. Writs of Acknowledgment.-By the previously existing law the granter must be infeft (1874 Act, section 63). Accordingly, it is thought that section 3 of the 1924 Act does not apply. On the other hand, the other simplifications are On the whole matter there are certain general considerations which it seems useful to set down. In the first place, it is thought that there is nothing in section 3 of the 1924 Act to supersede any previously existing rule of law which, in the case of any particular class of deeds, elevated infeftment of the granter to what may be fairly described as a solemnity. In the case of most deeds there never was any such rule, and in those cases the non-infeftment of the granter simply meant that he could give no warrant or precept for direct infeftment of the grantee, and that the grantee must take infeftment as on a transmitted warrant by sasine or notarial instrument. That is the class of case with which section 3 deals, and the effect of it is to put the substance of the notarial instrument into the grant itself, and then the grant may be recorded de plano to the effect of infeftment. But there always was another class of deed where the granter's infeftment was practically a solemnity, subject, no doubt, to the principle of accretion, with which we need not here trouble. Examples are writs of clare constat, writs of acknowledgment, and leases, if these last are to be valid against singular successors. The suggestion here made is that section 3 has no application, and cannot be made to apply, to such cases. In the second place, this rule about leases seems to put a serious difficulty in the way of the title of trustees ever being allowed to get into such a position that none of the acting trustees is infeft. Whether known to the tenants or not, it would never do for trustees to grant leases if none of them was infeft. Indeed it might not even be safe in connection with warrandice, express or implied. In the third place, in the case of heritable securities there is at least some ground for saying that section 3 of the Act was not required to enable anyone, with a good title to the debt, to assign or discharge the security also, without himself going on record, provided his title to the debt was set out on the face of the new deed (Macrae v. Gregory, 1903, 11 S.L.T. 102). If that be so in regard to assignations and discharges, much more would the same rule apply to deeds of postponement and consent. MESSRS STORIE, CRUDEN & SIMPSON, advocates, Aberdeen, have assumed Mr Francis Robert Young, solicitor, as a partner. Mr Young is a son of the late Mr James Young, solicitor and town-clerk, Portsoy, N.B. The sittings of the Second Division of the Court for the trial of causes by jury in the ensuing vacation will begin on Monday, 20th July next. J. A. EDINBURGH, 25th June 1925. Note. With regard to the transmission of causes for trial at these sittings, agents are referred to the Codifying Act of Sederunt, Book F, chapter i., section 5. A copy of the Lord Ordinary's interlocutor allowing the trial to proceed at the sittings, along with a print of the closed record and of the adjusted issue or issues, must be handed to the Keeper of the Rolls of the Division in which the cause is to be tried, and that not later than twelve o'clock noon on Tuesday, 30th June, otherwise the cause will not be taken at the sittings. THE Lord Ordinary officiating on the Bills will sit in Court on Wednesday, 26th August, and Wednesday, 30th September, each day at eleven o'clock forenoon, for the disposal of motions and other business falling under the 93rd section of the Court of Session Act, 1868, and the 3rd section of chapter i., Book A, Codifying Act of Sederunt; and Rolls will be taken up on Monday, 24th August, and Monday, 28th September, between the hours of eleven and twelve o'clock. EDINBURGH, 25th June 1925. WE are informed that the firm of Messrs T. & W. Liddle, Maclagan & Cameron, 5 Hill Street, Edinburgh, was dissolved on the 11th ult. Mr Thomas Liddle is carrying on business as before at No. 5 Hill Street, Edinburgh, and is also arranging for the assistance of a junior partner; and Messrs D. P. Maclagan, W.S., and James A. Cameron, W.S., have arranged to join, on 1st July, the firm of Fyfe, Ireland & Co., W.S., of which the present partners are Mr Neil Macvicar, W.S., and Mr John I. The business will continue Falconer, W.S. to be conducted under the firm name of Fyfe, Ireland & Co., at their present address, 71 Hanover Street, Edinburgh. Telephone No. 1977. |