ment creditor and an unregistered transferor, and it was held that, the transfer not being registered, the transferor (the debtor) had not "parted with her beneficial interest, because the transfer deed was inoperative to confer any estate in the lands on the transferee until he was registered as owner." The unregistered transferor was therefore postponed to the judgment creditor. 6 A similar question was, in 1909, decided in the same way by the Trinidad and Tobago Court, though without the Irish case being referred to. The Trinidad and Tobago statute-Real Property Ordinance (1902 No. 60)—provides by s. 46 that no instrument until registered shall bar any estate or interest in land. A judgment had been obtained against a registered owner who had some years before transferred the land to a purchaser, but the transfer had never been registered. The purchaser under the judgment was held entitled to priority, on the ground that the register was "conclusive evidence" that the debtor was at the time of the judgment being registered the owner of the land free from estates or interests whatsoever of any other person,' " and the purchaser under the judgment "was not affected by notice direct or constructive of any trust or unregistered interest.” an One of the Canadian cases already cited affords interesting contrast to the Trinidad and Tobago case. In Bain v. Pitfield (Manitoba), an unregistered transferee claimed priority against the interest of a judgment creditor, and was held to be entitled to have the lis pendens that had been registered against his vendor removed. It was held that the vendor (registered owner) had by the sale agreement "divested her self and her cestui que trust of all interest in the land," and that they had not "any interest which could be bound by the defendant's judgment or sold to satisfy it." Leecharan v. Judges Maraj (1909). Trin. & Tob. Judgments (1913), p. 344. VOL. XXXVIII. C.L.T.-3 British Columbia and Saskatchewan each present peculiar features, both as to statutes and cases. In British Columbia, a registered judgment constitutes "a lien and charge on all the lands of the judgment debtor in the same manner as if charged in writing by the judgment debtor under his hand and seal."" The registration statute also contains an enactment in stringent terms, by which no instrument can "form any estate or interest either at law or in equity" until registered. These enactments (in each case re-enacting previous legislation) are substantially identical with the Irish legislation already referred to. With regard to the ineffectiveness of unregistered instruments the enactment in the Land Registry Act has been construed as strictly as the Irish enactment, so that not even an equitable interest passes until registration of an instrument." With regard to the binding effect of a judgment as a charge, the British Columbia Courts have adopted the rule as laid down in Eyre v. McDowell, and have held that "lands of the judgment debtor" mean his beneficial interest and not "lands registered in the name of the judgment debtor." 10 The result has been that, in the case just cited, an unregistered conveyance was held to have priority over a registered judgment against the registered owner (grantor). Thus, notwithstanding the charging effect given to a registered judgment, the British Columbia Courts have not followed the Irish decision, and have held in effect that Eyre v. McDowell applies to registered land. In Saskatchewan, the plan has been adopted of placing an enactment, relating to registered executions, almost identical with the British Columbia provision as to judgments, in the registration statute itself." The enactments as to unregistered instru 'Execution Act (R. S. 1911, c. 79), s. 27. 'Land Registry Act (R. S. 1911, c. 127), s. 104. 10 Entwisle v. Lenz (1908), 9 West. L. R. 17, 317. "Land Titles Act (R. S. 1909, c. 41), s. 118 (2), as amended by 1912-13, c. 16, s. 17. ments being ineffective are confused, but are drafted on the model of the Australian enactments, and seem intended to make registration and not mere execution the operative act.12 The courts at first showed a disposition to give full effect to the new legislation making the registered execution a charge on the land, and it was held in one case 13 that a registered execution did take priority of an equitable mortgage-unregistered. Jellett v. Wilkie was expressly distinguished, and the effect of the new legislation was thus stated: "The execution creditor has now the same priority and the same interest in the lands of the execution debtor as he would have if the debtor had charged those lands under his hand and seal. If the debtor had so charged them, the execution creditor would under 8. 70 of the Land Titles Act have obtained priority over the equitable mortgage." However, in a subsequent case," an unregistered transferee was held to have priority over a registered execution, and the case just cited was distinguished on the ground that in the present case the registered owner had not merely mortgaged but had parted with all his interest. In a still later case,15 the unregistered transferee also prevailed against the registered execution, and here Jellett v. Wilkie was relied on, as well English case which has nothing to do with registered land. as an The distinction drawn in these Saskatchewan cases between mortgage and transfer seems unsatisfactory, and the two cases of Union Bank of Canada v. Lumsden Milling Co. and Weidman v. McClary Manufacturing Co. are really inconsistent in their reasoning, since in the former Jellett v. Wilkie is held inapplicable by reason of the new legislation, and in the latter is held applicable notwithstanding it. It will thus be seen that, on the question whether the principle of Eyre v. McDowell applies to registered land, the Saskatchewan cases are contradictory, 12 Land Titles Act, ss. 64, 67, 69, 70. Union Bank of Canada v. Lumsden Milling Co. (1915), 31 West. L. R. 801. 24 Schlosser v. Colonial Investment Co., [1917] 1 W. W. R. 1045. "Weidman v. McClary Manufacturing Co.. [1917] 2 W. W. R. 210. whilst the British Columbia cases are opposed to those of Ireland and Trinidad and Tobago. In other jurisdictions than those four, the registered judgment or execution is not so distinctly made a charge on the land, and possibly the length of time during which the present decision of the Australian and Canadian Courts have been accepted as correctly expounding the law, would prevent their now being disturbed by the final appeal court. But as regards Ireland, Trinidad and Tobaga, British Columbia and Saskatchewan, it seems inevitable that sooner or later, in the absence of effective legislation, the doubt that now exists as to which view is correct must be decided by the House of Lords or Judicial Committee of the Privy Council. The most reasonable view would seem to be that Eyre v. McDowell does not apply to registered land. If the doubt is to be set at rest by legislation, it would seem that the enactment in Western Australia already referred to is more likely to be a serviceable model than the enactment in Saskatchewan-which has already produced contradictory decisions. JAMES EDWARD HOGG. Lincoln's Inn. DIVORCE LAW IN WESTERN CANADA-A Since Mr. George S. Holmested does me the honour of criticising in the November issue of the Canadian Law Journal an article from my pen on the Divorce Laws of Saskatchewan and other Western Provinces which appeared in the Canadian Law Times for October, I am constrained to claim my right of reply. The subject is momentous; but Mr. Holmested approaches it rather as the champion of his book on the Divorce Laws of Canada, and of preconceived notions to which he tenaciously adheres, than as an impartial critic of what I have written. There is, as a consequence of this attitude, a pinge of petulance throughout his criticism and an unexpressed, but very manifest, claim to an authority whose impairment he resents. This is puerile but not philosophic. I never knew of Mr. Holmested's book till I learned the fact of its existence, and that it arrived at conclusions diametrically opposed to mine, from the author himself in an impetuous letter written to me after my article had appeared. My original article was written solely with the object of clearing away the mists and confusions surrounding the problem: Whether the Western Provinces which were carved out of the North-West Territories have or have not a Divorce law; and if they have why that law is not in operation. I make no apology therefore in relegating the microbic assaults on my article which absorb the front and leading part of Mr. Holmested's criticism to the background where I will deal with them according to their worth, when I have first demonstrated the rightfulness of my position on the main issue. Mr. Holmested's whole position as expressed not only in his criticism but in his book is that the NorthWest Territories Act, R. S. C. (1886) cap. 50, was ultra vires of the Dominion Parliament, and that sec |