neighbours; while they become almost insurmountable when he seeks to fix the motives of a company, voting, it may be, by a majority of its directors. Motives, again, are often so mixed as to defy analysis. The rulings which have been discussed might, it is submitted, be supported without any reference whatever to malice or indirect motive. Even in Lumley v. Gye, which I have ventured to suggest was not well decided, Willes, a great lawyer (afterwards Mr. Justice Willes), in argument puts the whole matter in one pregnant sentence: The averment of malice can make no difference. If the action does not lie without malice, it does not lie with it.' W. E. ORMSBY

(Judge of the High Court, Travancore).

[Since this article was corrected for the press the decision of the C. A. in the Mogul Steamship Co.'s case has been unanimously affirmed by the House of Lords, '92, A. C. 25, and on the same grounds. - ED.]

REGISTRATION OF TITLE AND FORGED TRANSFERS.

R

IGHTLY or wrongly, and I suppose it must be taken to be wrongly, the general public, and even, speaking generally, lawyers, have hitherto assumed that the essence of Registration of Title, was the non-necessity of making any enquiries when once a certificate of proprietorship was issued, whether by the land registry or by railway and other companies. This assumption has, however, been somewhat rudely broken in upon, as to land, by the recent decision of the Privy Council in the case of Gibbs v. Messer on appeal from Victoria, and as to stocks and shares, by what has been done, rather than by what has been decided, in what is popularly known as the Barton case. The facts of the Gibbs and Messer case were shortly these. Mrs. Messer, a lady who resided in Scotland, but who possessed land in Victoria, the title to which was registered under the colonial system, gave her husband a power of attorney enabling him to sell or mortgage. The husband joined his wife in Scotland, and left behind him in the colony in the hands of his solicitor the power of attorney and the certificate of his wife's title. The solicitor forged a conveyance, by the husband as attorney, to a fictitious and non-existent person, and got that person registered as proprietor. He then forged a mortgage, by the fictitious and non-existent person, to real and existent persons, and after some difficulty that mortgage was registered as an incumbrance on the title of the fictitious and non-existent person. Subsequently the frauds were discovered, and Mrs. Messer took proceedings to have herself re-registered as proprietor of the land freed from the registered mortgage. The Victorian Courts ordered that she should be so re-registered, and that the mortgagees should be repaid their money out of the insurance fund which is established in Victoria for the purpose of providing compensation in cases of fraud. Mr. Gibbs, the Registrar in Victoria, objected to the order so far as it affected the insurance fund, and the Privy Council on appeal sustained his objection, the result being that the mortgagees lost their money and had to pay all the costs. The principle on which the decision proceeded is familiar enough. Its application was what is startling. It is held that as the mortgagee parted with his money in exchange for the forged mortgage, he is not entitled to the benefit of the subsequent registration of that mortgage, notwith

standing the fact that the Registrar was induced to register, by the fraud, not of the mortgagee, but of the solicitor. It would not become me to argue that the decision was wrong, but I may be permitted to say that if the law is allowed to remain in that state, Registration of Title becomes a farce. Technically, no doubt registration takes place at the request of the mortgagee, but really it is done for the mortgagor. If otherwise it would only be necessary to delay paying over the mortgage money until the mortgage has been registered, and registered not by the mortgagee but by the mortgagor, and then the mortgagee would be safe. This, however, is not the ordinary course of business, although it would only be working out in detail, what in fact is the result of the present system, but it would prevent its being said that the transaction was completed by exchanging the money for the forged instrument, and so tainting the title of the mortgagee, with the forgery which he knows nothing about.

The Barton case was another case of forgery and fraud, with even more startling consequences than those in the Messer case.

Barton, who was owner of stocks in the London & North Western Railway Co., died leaving a will, of which he appointed his widow and Thomas Barton executors. The will was proved and registered by the Company. The widow and Thomas Barton were therefore in a position to sell the stock which stood in the name of the deceased. Thomas Barton caused the stock to be sold, and to the transfers he forged the signature of the widow, adding of course his own genuine signature. The transfers were registered, and for some ten years or more the fraud was not discovered, because Thomas Barton regularly paid over to the widow the amount of the dividends on the stocks. When the facts became known, the widow commenced proceedings to have the stocks replaced, and ultimately this was ordered to be done. The transferees were made parties to the proceedings, but, without getting any decision against them, the Railway Company simply blotted their names out of the register, and called upon them to repay the dividends they had received. So matters stand, except that some of the transferees have been compensated through the Stock Exchange, and in pursuance of the rules of that body. But in all cases, some presumably innocent person has been left to bear the loss occasioned by Thomas Barton's frauds. In some cases the Company by its action has escaped loss, but not in all, because where the original transferees resold their stock, the Company could not blot out the names of the purchasers, and I venture to think that in no case was the Company justified in taking the law into its own hands. The register, as I contend, can only be properly altered at the request of the

April, 1892.]

Registration of Title and Forged Transfers. 153

registered proprietor, or by order of a Court of Competent Jurisdiction. But of course it is of no use contending with such a mighty body as the London & North Western Company, and so those who have been unfortunate enough to be treated in this highhanded manner, have had to content themselves as best they may, or enter into a lawsuit, which, of course, would not end short of the House of Lords.

What, then, is to be done? Mr. Pitt-Lewis's Act of last Session is one answer to this question. But the Act is merely an enabling one, and no Company, not even the London & North Western Co., has shown a disposition to adopt it. Another plan would be to adopt the suggestion already made, and postpone payment for stock until it is registered in the name of the purchaser, at the request of the seller. That, however, has been stigmatised as a disorganization of business. So, apparently, investors are to be left in this Mahomet's coffin-like position, until either it suits the Companies to adopt Mr. Pitt-Lewis's Act, or the Legislature passes a compulsory Act, which in the face of the opposition of the Companies is not likely to be done. The one remedy left seems to be that which, as has been said, is called a disorganization of business. But is it really so? If Companies will not accept, voluntarily, the responsibility which seems to me to be implied in the fact of registration, and Parliament will not enact that responsibility, then even at the risk of disorganization, business-men must in the interests of the investing public, (mere speculators I leave out of account,) so carry out all purchases and mortgages, as to secure the unchallengeability of the certificates of title or proprietorship, which are to result from them. To do otherwise, would be to surrender, altogether the certainty, which is, if not the only, at least the most important, thing to be gained by having Registration of Title, whether of land or of stocks and shares.

JOHN R. ADAMS.

[I must be allowed to remark, as to Gibbs v. Messer, '91, A. C. 248, that a different view is at least possible. See L. Q. R., vii. 299.-ED.]

THE FINAL ACT OF THE FRENCH COPPER RING

DRAMA.

HE failure of the Société des Métaux in March, 1889, owing

THE

to the collapse of the tremendous copper ring organised by M. Secrétan, the Gérant of the Société, and the terrible crash of the Comptoir d'Escompte, which had so imprudently guaranteed the vast engagements of that ill-fated company-a disaster only comparable in magnitude to the crisis of November, 1890, in London—are doubtless still within the recollection of most people. These failures gave rise to a mass of litigation between the different mining companies which had contracted with the Société des Métaux for the delivery of their copper to the Société the Rio Tinto Company amongst others, a short account of whose action was given two years ago by the present writer in the pages of this REVIEW'. Eventually, however, all these companies were finally routed by a judgment of the Paris Court of Appeal of Dec. 18, 1890, which declared the various contracts made by the Société des Métaux with these companies null and void as constituting a conspiracy in restraint of trade 2. An enterprising debenture holder of the Société des Métaux named Llevelyn, who held in that company the modest stake of 1500 francs (60), and two shareholders who each held one action but whose wholly unnecessary intervention was eventually dismissed with costs, together with the two liquidators of the Société, thereupon brought an action before the Paris Tribunal of Commerce to obtain leave to strike out from the list of the liabilities of the Société des Métaux the claim of the Comptoir d'Escompte for 75,000,000 francs which it had paid for the Société to the Bank of France on the ground that since the judgment of Dec. 18, 1890 of the Court of Appeal it was

1 L. Q. R. vi. 204.

2 Art. 419 of the Penal Code under which M. Secrétan was prosecuted is as follows:

Tous ceux qui par des faits faux ou calomnieux semés à dessein dans le public, par des sur-offres faites au prix que demandaient les vendeurs eux-mêmes, par réunion ou coalition entre les principaux détenteurs d'une même marchandise ou denrée tendent à ne la pas vendre ou à ne la vendre qu'à un certain prix, ou qui par des voies ou moyens frauduleux quelconques auront opéré la hausse ou la baisse du prix des denrées ou marchandises ou des papiers et effets publics au-dessus ou au-dessous des prix qu'aurait déterminés la concurrence naturelle et libre du commerce, seront punis d'un emprisonnement d'un mois au moins, d'un an au plus et d'une amende de cinq cents francs à dix mille francs. Les coupables pourront de plus être mis par l'arrêt ou le jugement sous la surveillance de la haute police pendant deux ans au moins et cinq ans au plus.'