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LAW REVERSIONARY INTEREST
VOL. XLII., No. 14.
The Solicitors' Journal and Reporter. 24, LINCOLN'S INN FIELDS, W.C.
ESTABLIBHED 1853. Capital
LONDON, FEBRUARY 5, 1898. Debentures and Debenture Stock
£180,000 REVERSIONS BOUGHT.
LOANS MADE THÉREON.
The Editor cannot undertake to return rejected contributions, and
copies should be kept of all articles sent by writers who are not on MIDLAND RAILWAY HOTELS.
the regular staff of the JOURNAL.
Buses to all parts every minute. Close to King's
Law SOCIETIES .................................... 235 LEEDS
228 LEGAL NEWS .................................... 239 DERBY
DIBOLAIMER OF LEASEHOLD PROPERTY COURT PAPERS................................. 240 MORECAMBE
Tennis Lawn to Seashore. Golf. HEYSHAM-HEYSHAM TOWER, Dr MORECAMBE. Lovely Country: Golf.
228 WINDING UP NOTICES
........................... 240 Tariffs on Application. Telegraphic Address " Midotel.”
CREDITORS' NOTIONS....................... 241 Adelphi “ Turtle” Boup forwarded from Adelphi Hotel, Liverpool, per quart jar 18s.; CORRESPONDENCE ................................
230 BANKRUPTOY NOTIOBS............... ........
241 per pint jar, Is. 68., carriage paid. Speciality for Invalids.
WILLIAM ŤOWLE, Manager Midland Railway Hotels. THE OLDEST & WEALTHIEST EXISTING MORTGAGE INSURANCE OFFICE.
Cases Reported this Week. THE LAW GUARANTEE AND TRUST SOCIETY,
In the Solicitors' Journal. In the Weekly Reporter.
Hockey v. Western
215 SUBSCRIBED CAPITAL £1,000,000. PAID-UP - £100,000. Jennings V. Jennings
Clifford y. Thames Ironworks Co......... 222 Mason v. Keays..
233 FIDELITY GUARANTEES OF ALL KINDS. ADMINISTRATION AND LUNACY Montgomery, Jones, & Co. v. Lieben Estate Duty payable on the Death of
thal & Co.
the Second Earl Cowley, In re ......... 223 BONDS, MORTGAGE, DEBENTURE, LICENSE, AND CONTINGENCY
New British Iron Co. (Lim.), Re. Ex Gower v. Couldridge......................... 214 INSURANCE. TRUSTEESHIPS FOR DEBENTURE-HOLDERS, &c.
234 Reg. v. Taylor and Others, Justices. Grange (Appellant) v. Silcock (ReEx parte Vogwill 235 spondent)..
221 HEAD OFFICE: 49, Chancery-lane, W.C. | CITY OFFICE: 56, Moorgate-street, E.C. Rogers v. Manchester Packing Co.. 234
South Hetton Coal Co. (Lim.) v. Has
Hughes, In re. Brandon v. Hughes... 220 IMPORTANT TO SOLICITORS
well, Sbolton, and Easington Coal Mayor, &c., of the Borough of West and Coke Co.
Hartlepool v. Robinson ................... 218
for the purpose only of hearing or trial. The learned judge 24, MOORGATE STREET, LONDON, E.C.
commenced his sittings for the trial of these actions on WednesMortgages "Guaranteed on Licensed Properties promptly, without day last.
special valuation and at low rates. LEGAL AND GENERAL LIFE ASSURANCE
THE MEETING of the Incorporated Law Society last week was, SOCIETY.
we believe, the largest in point of numbers which has been held
during the last ten years; the attendance of country members ESTABLISHED OVER HALF A CENTURY. being much in excess of the average. 10, FLEET STREET, LONDON.
THE PRESIDENT of the Incorporated Law Society has been FREE,
confined to his house for about a week by a severe attack SIMPLE,
of influenza, and, much to the regret of everyone, was unable to preside at the recent meeting of the society. We are glad to learn that he is now convalescent.
WE OBSERVE that our esteemed correspondent “H.” still entertains the idea that the result of compulsory registration of title will be to increase the remuneration of solicitors, at all events for the first ten or twenty years. That will, no doubt, be so if the existing scale of remuneration is retained. But we
believe it may be taken as certain that, sooner or later, after AND
compulsory registration bas been applied to a district, the scale SECURE.
of remuneration of solicitors in that district for non-registry
conveyancing businoss will be reduced. FUNDS £3,000,000. INCOME
4373,000. YEARLY BUSINESS £1,000,000. BUSINESS IN FORCE £11,000,000.
A CORRESPONDENT calls attention to the delay in the issue of TRUSTB 8. The Right Hon. Lord HALSBURY (Lord High Chancellor of England).
the general rules under the Land Transfer Act, 1897. We are The Hon. Mr. Justice KEKEWICH.
able to assure him that the committee who are engaged in The Right Hon. Sir JAMES PARKER DEANE, Q.C., D.C.L. WILLIAM WILLIAMS, Esq.
framing these rules have been sitting with the greatest assiduity, RICHARD PENNINGTON, Esq.
but we can imagine that the difficulty of endeavouring to turn DIRECTORS. Bacon, His Honour Judge. Masterman, Henry Chauncy, Esq.
the Land Transfer Act, 1875, into a workable measure by means Davey, The Right Hon. Lord. Mathew, The Hon. Mr. Justice.
of rules is very great. If, however, it can be done at all, we Deane, The Right Hon. Sir James Parker, Meek, A. Grant, Esq. (Devizes), Q.C., D.C.L.
Mellor, The Right Hon. John W., Q.c., believe that the learned judge who has devoted so much time Ellis, Edmund Henry, Esq.
and attention to the work, and the other skilled members of the Finch, Arthur J., Esq.
Mills, Richard, Esq.
Morrell, Frederic P., Esq. (Oxford). committee, are likely to accomplish this result.
Rowcliffe, Edward Lee, Esq.
THE EXPERIMENT which has been made for expediting tbe trial Kekewich, The Hon. Mr. Justice.
Williams, Romer, Esq. Ludlow, The Right Hon. Lord. Williams, William, Esq. of actions set down in the special list under order 14 has so far
been a distinct success. The judge in chambers has been see how the Council, as representing these solicitors, could refuse enabled to complete his chamber list in time to devote the after- to reply. And the question being should the Land Transfer Act noons to disposing of these cases in court. We are, however, be applied to London, the views of London solicitors should by no means sure that the plan will always work as well as it is determine the nature of the reply; just as the question subdoing now. Mr. Justice PHILLIMORE, we are informed, has mitted to the Council had been whether the Act should be shown a combination of qualities in dealing with chamber busi- applied to Yorkshire, the views of the Yorkshire law societies ness which is remarkable, especially in a new judge. Though ought to regulate the reply. The question is a local one, and always courteous and patient, he is extremely quick in deciding, is to be decided by local professional opinion. And we think and is so thoroughly conversant with practice that he clears his that if the application of the Act to London were negatived, it lists easily and rapidly. It is obvious that he is quick, other. would make it all the easier to get its application to Yorkshire wise he could not sit in court two or three days a week at two finally and definitely negatived at once, while, if the experiment o'clock. It does not follow, however, that all the judges in turn is tried in London, Yorkshire will have the prospect of a will be able to carry on these afternoon sittings in court. It vigorous attempt being made three years hence to extend the may be safely predicted that some of them will be quite unable operation of the Act to their district. to continue the arrangement. We shall therefore have one system for one term and another for the next, which, to say the least of it, is not symmetrical.
The decision of STIRLING, J., in Jennings v. Jennings (reported elsewhere) is an interesting application of the principle
laid down by the House of Lords in Trego v. Hunt (44 W. R. WAS THERE ever known with regard to any legislation such 225; 1896, A. C. 7). It is an established rule that a man upon a comedy of errors (tragedy of errors some people might say) as selling the goodwill of his business does not by the more sale has occurred with regard to the recent Land Transfer Act? As debar himself from starting in the same line of business again, a valued correspondent points out, if the various public bodies and he may set up his new business, if he chooses, next door and persons who have recently 80 strenuously opposed the to the business which he has just given up (see per Wood, application of the Act to London had lent any assistance to the V.C., in Churton v. Douglas, Johns. p. 187). "To provent this long contest waged by solicitors against the Bill, we should it is necessary for the purchaser to protect himself by exnever have had a compulsory Act. But this is really one of the press covenants. However reprehensible such conduct may least remarkable parts of the comedy which has been enacted. The be, it is practically impossible for the courts to interfere, for opening scene, when the trusted and skilful leader of the opposi- it would be necessary to supply the omission of the parties tion to the Bill not only withdrew his opposition but actually took and to specify a definito limit within which the starting of a part in the framing of a compulsion Bill, was a remarkable trans- rival business shall not be permitted. It has never been formation-not, it must be admitted, so much on the part of supposed that either equity or morals require the vendor to Mr. LAKE, who had never concealed his approval of the refrain altogether from starting in business again. But though principle of registration of title, as of the solicitors who weakly the vendor is, in the absence of a restrictive covenant, at liberty followed his lead. But this again has been surpassed by the to begin a new business and appeal for custom to the public, it action of the Council of the Incorporated Law Society. After is a very different matter when he takes to soliciting the assenting to the Bill--and if our recollection of a deputation to customers of the old firm. In Labouchere v. Dawson (L. R. 13 the Lord Chancellor is correct, going a great deal further than Eq. 322) Lord ROMILLY was clear that such conduct was an assenting to it—and refusing to move a finger to help the York- unlawful infringement of the goodwill which had been sold, skire law societies in their successful attempt to improve the and though the law as laid down by him was overruled by the measure by limiting its operation, the Council have at last Court of Appeal (Pearson v. Pearson, 32_W. R. 1006, 27 Ch. D. thrown aside the time-serving policy which so greatly dis- 145), it was restored by the House of Lords in Trego v. Hunt. credited them last year, and have boldly declared against the The prohibition upon soliciting customers, however, springs Act; for, whatever may be said, this is the real meaning of only from the relation of vendor and purchaser, and does not their communication to the London County Council, and if the bind a person who is not immediately interested in the former majority had been allowed to express their views this would capacity. Hence where a trustee in bankruptcy sells the have been stated. Now comes the final, and not the least goodwill of the bankrupt's business, the bankrupt is thereby curious, of these bewildering transactions. No sooner have the placed under no restrictions (Walker' v. Mottram, 19 Ch. D. 355). Council come to their right minds about the Act, and given in the recent case of Jennings v. Jennings there was no sale in vent (to some extent) to their dislike to it, and attempted to pro- the ordinary manner, but an action brought by one partner, vent its application, than the Yorkshire societies proceed to A., against the other partner, B., was settled upon the terms sternly censure the council for not keeping silence about the inter alia) that judgment should be entered for A. for £1,200, Act, and for hindering it from coming into operation !
and that the partnership should be dissolved and the assets retained by B. Subsequently A. claimed to be entitled to
solicit the customers of the business, but STIRLING, J., held that, OF COURSE the above, though literally accurate, is not in inasmuch as the order was made by consent, it was equivalent substance a correct representation of the attitude of the York- to a sale, and since“ assets was wide enough to include goodshire societies. Their contention was stated with much clear. will, the rule in Trego v. Hunt applied. ness and moderation by Mr. MIDDLETON at the recent meeting of the Incorporated Law Society. They say that the reply of the Council was made in the interest of London solicitors alone; it THE DECISION of WRIGHT, J., in Re New British Iron Co. was intended to prevent London from being the corpus vile for (Limited) (reported elsewhere), following that of Kay, J., in Re the experiment, and as one of the Ridings of Yorkshire would Dale g. Plant (Limited) (43 Ch.'D. 255), establishes that directors notoriously be selected if the application of the Act to London are entitled to prove in the winding-up of a company for arrears of was negatived, the reply was tantamount to sacrificing York fees due to them. A provision which has sometimes been thought shire to London. We do not think that anyone can accuse us to militate against this rosult is contained in section 38 (7) of the of want of sympathy with the Yorkshire solicitors ; but we must Companies Act, 1862.. According to this no sum due to any memconfess that we do not find anything in the debate at the recent ber of a company in his character of member is to be deemed to be meeting to alter the opinion we expressed at the time the reply a debt of the company payable to such member in a case of comwas sent in by the Council. It must be remembered that while petition between himself and any other creditor not being & in most country districts there are separate law societies to look member of the company. Obviously this only provents the after the interests of the local solicitors, London, with its enor- directors from proving for sums due to them in their character mous body of solicitors, has no representative body but the Incor- of members of the company, though it is a possible argument porated Law Society. Hence, when a question with regard to a that where the director is bound to be a member he really takes matter most seriously affecting the interests of London solicitors his fees on the ground of membership and so in his character as was put to the Council by the London County Council, we do not member. According to the head-note to Ex parte Cannon (30
Ch. D. 629), it was there held that in a company with such a Christopher (Bell C. C. 27) it was said that, in order to establish regulation à director's fees were excluded from competition a charge of larceny, it is not sufficient that the finder may think with outside creditors, and though some stress is laid in the that by taking pains the owner may be found; there must be judgment of PEARSON, J., on the special form of the article immediate means of finding him. Again, in R. v. Dixon (1 Dear. under which the directors took their remuneration, yet he seems 0. C. 580) JERVIS, C.J., said: “The finding of the jury is that in the main to have relied on the fact that the directors, when the notes were lost, that the prisoner did not know the owner, acting in that capacity, were no more than working members of but that it was probable that he could have traced him. He the company. From first to last, he said, while they are sitting was not bound to do that." The authorities, therefore, seem to as directors they are doing their work in the capacity of stop a long way short of Mr. Curtis BENNETT's ruling, that the membors, and working members, of the company. In Dale g finder of å thing is bound to take active steps to discover the Plant (Limited), however, KAY, J., declined to follow the above owner in order to avoid risk of a conviction for larceny. Such case where arrears of salary due to a managing director were in a decision is obviously inconsistent with the leading case. question, and WRIGHT, J., has now declined to follow it in the casa of ordinary directors. KAY, J., supported his judgment by the consideration that the managing director had been THE QUESTION how far a medical man is bound to regard as appointed on account of his special knowledge of the company's strictly confidential information he may obtain in the practice business. But in fact the question depends solely on the of his profession, came very prominently before the public not character in which the fees are earned. Does the director earn long ago in connection with the Kitson v. Playfair libel case. them as member or no ? Obviously it would seem that he does some attention has again been called to the subject by the pronot, or the company's profits would have to be distributed in ceedings at a recent inquest. The deceased was taken into fees instead of in dividends. He takes them in a narrower Guy's Hospital suffering from a severe stab, and there died of capacity than that of member, and since the statute has not the wound. On the day he died a woman surrendered to the excluded him he is entitled to prove in the winding-up. police, and admitted that she had stabbed the deceased. This
was the first the police heard of the occurrence, and inquiries
were immediately made at the hospital, but the man had just THE POPULAR but erroneous maxim, "finding, keeping,” died... As the fatal wound was one which could not in all provery frequently brings persons into trouble. Those who find bability have been self-inflicted, the coroner and the jury and keep often learn, to their surprise, that the law regards expressed opinions that the hospital authorities should have comthem as thieves. There is, of course, some truth in the old say municated at once with the police. This view was strongly ing, for if a chattel is entirely abandoned by the owner, it is opposed by Dr. PERRY, the medical superintendent of the quite certain that the finder has a right to keep it. Also where hospital. He stated that it was the custom ut the hospital not the owner is unknown and cannot be found, it is clear that the to give information to the police unless the injured person was finder has a good right to the thing as against the rest of the desirous of so doing. He gave as a reason for this that cases world. When, however, a thing is found under circumstances of attempted suicide are very common; that this is a crime; which show that it was not abandoned by the owner, but, on the and that if it were known that if a person suffering from a contrary, that it was lost by mischance, the rights, duties, and self-inflicted injury were taken to the hospital information liabilities of the finder become often rather complicated. It is might be given to the police, such person would certainly not well established that if the finder knows at the time of finding be brought to the hospital, and might die for want of proper who the owner of the thing is, but nevertheless dishonestly treatment. He therefore thought a hospital ought to be known determines to keep the thing, he is guilty of larceny, as also he as a place where no questions were asked. The Lancet concurs is if there are marks on the thing, or other circumstances con- heartily in this opinion as to what should be the proper attitude nected with the finding, which point out the owner. It does of hospital authorities in such cases, and approves of the conduct not appear from reported decisions that the finder is bound, in of the surgeons who attended the case.
The journal says: the absence of knowledge or indications of the ownership, to "We consider that Dr. Perry and the house surgeon acted in take active steps to discover the owner. In a case, however, the only way in which they could have done either from the tried recently before Mr. CURTIS BENNETT at the Marylebone point of professional rectitude or that of expediency. It would police-court, that magistrate laid down the law in words which be a sorry day for hospitals if it came to be known that they seem to go beyond any ruling of the High Court. He is wero, in addition to their health-giving functions, the portals to reported to have said that any person finding anything must use a criminal dock; and although the prevention, detection, and reasonable diligence to discover the owner before he could punishment of crime aro matters which every good subject regard it as his own property, and that to fail to try and find ought to have at heart, such are not the objects for which hosthe owner and to appropriate the property to his own use was pitals were founded, nor are their officers to be regarded as to commit larceny.
This is probably excellent morality, but it agents of the law.”. We certainly agree with our contemporary, does not appear to be good law, nor in accordance with any of and we think that it would be most injurious, both to the medithe numerous decisions of the High Court on the subject. In cal profession and to the hospitals, if doctors were to voluntarily R. v. Thurborn (1 Den. C. C. 387), the case that is usually give information to the police of matters coming to their know spoken of as the leading case on the subject, the judges said that it ledge entirely in their professional capacity. a finder take the thing, meaning at the time to keep it, and reasonably believing that the owner can be found, it is larceny; and that whether the finder has such belief may be shown “by evidence IN THE recent case of Brune v. James (ante, p. 214), which was of his previous acquaintance with the ownership of the particular an appeal from a county court in an action of trespass for £2 chattel, the place where it is found, or the marks upon it. In damages and an injunction, a preliminary objection to the hearsome cases it would be apparent; in others, appear only after ing of the appeal was taken by the plaintiff--namely, that as the examination. It would probably be presumed that the taker claim did not exceed £20, leave to appeal should have been first would examine the thing, as an honest man ought to do, at the obtained from the county court judge. It was, however, held time of taking it.” The facts of the case were that the prisoner by the Divisional Court that, as the defendant was only appeal. had picked up a bank-note on the high road. There was no ing against an injunction, and not against the damages, he mark on the note, and no other circumstances to show to whom might proceed with his appeal without leave. This decision is, it belonged. Shortly afterwards, however, he discovered the it is submitted, very difficult to support on the ground alleged, owner, but nevertheless he appropriated the note to his own uso, having regard to what was decided in Martin V. Bannister (28 as he meant to do when he picked it up. It was held that, as W. R. 143, 4 Q. B. 491)-namely, that where a plaintiff comthe first taking was not felonious, there being nothing then to plains of actual damage, the injunction does not itself constitute show that the owner could be found, the subsequent conversion à distinct cause of action, but is a mere remedy for the tort comdid not amount to larceny. This case has often been followed mitted which remains the sole cause of action. In other words, since, though sometimes with reluctance, and has always been the more claim for an injunction besides damages in no way considered binding on the High Court. In the case of R. v. alters the character of the action, which remains an action of
tort, and, as such, is, therefore, we submit, wholly governed, so intention of the rule (ord. 30, r. 1) is that after leave to defend far as the right of appeal is concerned, by section 120 of the has been given under order 14, and defence delivered, the plainCounty Courts Act, 1889 (51 & 52 Vict. c. 43), which on this tiff may proceed with his action without regard to order 30. subject provides as follows-namely, “that there shall be no There is solid ground for supposing that when the Rule Comappeal in any action of contract or tort, other than an action of, mittee inserted in ord. 30, r. 1, the exception as to "application ejectment or an action in which the title to any corporeal or incorporeal for summary judgment under order 14" they intended to hereditament shall have come in question, where the debt or damage entirely relieve a plaintiff so proceeding from the necessity of claimed does not exceed twenty pounds
unless the issuing a summons for directions at any stage of the action. We judge shall think it reasonable and proper that such appeal base this supposition on the terms of ord. 14, r. 8 (a), which are should be allowed, and shall grant leave to appeal.”
as follows: “Where leave, whether conditional or unconditional, is given to defend, the judge shall have power to
give all such directions as to the further conduct of the action ORDER 14 AND THE SUMMONS FOR DIRECTIONS. as might be given on a summons for directions under order 30,
and may order the action to be forth with set down for trial." In a previous article on the subject of the new order 30 (ante, p. 191) we mentioned incidentally a point which has occasioned, defend without ordering summary trial or giving directions, it
When the master, as constantly happens, gives leave to and is occasioning, much perplexity among practitioners. When must be assumed that he does not think it a case for summary leave to defend is given under order 14, what is the plaintiff's trial, and that neither of the parties asks for directions, and the position as to the requirement imposed upon him by ord. 30, 1? We were unable on that occasion to discuss this point fully, master has not sufficient information to give directions without and it is one which is so open to argument, which casts the being asked. But in considering whether it was intended that shadow of uncertainty over such a large number of cases, and such a case should again fall under order 30 we must bear well which is apparently so far removed from any prospect of Order 30 combined, was actually in the master's hands when he
in mind that this power to give directions, under Order 14 and authoritative determination, that we propose now to consider it
gave leave to defend ; and further, that defence having been somewhat fully. As a preliminary observation, we may point out one peculiarity order 14 until the time for defence has expired; and, more
ordered, the case does not actually pass out of the operation of of procedure under the new order 30. The question whether in
over, that the order for defence is an important direction which particular circumstances a summons for directions ought or ought not to be issued is one which it seems hardly possible can impliedly carries with it the right of the plaintiff to deliver a
reply. be brought before the court on appeal. If a
It appears, therefore, that a plaintiff suing by specially
summons for directions is issued and an order made thereon, the only leave to defend is given under order 14, and defence delivered,
indorsed writ for a liquidated demand is not bound, where possible appeal is against the directions given. It a summons
to issue a summons for directions. for directions is not issued, the defendant may apply to dismiss
We have dealt only with a specially-indorsed writ for a (ord. 30, r. 8), and upon that application the action may be dismissed or directions may be given. In
We will now consider shortly the same liquidated demand. doubtful case the
any master would probably adopt the latter alternative, in which point when leave to defend is given under order 14 in an action
of land. In this case, if no defence is delivered, case appeal would only lie against the directions. It is only in the plaintiff cannot enter judgment in default. Ord. 30, r.1 (6), the improbable contingency of an order to dismiss being made under that rule when the plaintiff had been right in not issuing "plaintiff's claim is only for a debt or liquidated demand.”
only allows judgment to go in default of defence when the the summons for directions, that the direct point whether or not such summons ought to have been issued could be raised before within ord. 27, r. 2. When the time for defence under order the Court of Appeal. It is therefore important to clear up, as the plaintiff's course? Is he to apply for directions under
14, therefore, has expired, and no defence is delivered, what is far as possible, this question as to whether a summons, for order 30, or can he proceed at once to serve notice of motion directions is necessary where leave to defend has been given for judgment in default of defence? The argument here for under order 14. Ord. 30, r. 1 (6), pro'i a follows:
considering the action to have been taken completely out of
“Such summons (for the scope of order 30 by the proceedings under order 14 is directions) shall be taken out (by the plaintiff) after
appearance and before the plaintiff takes any fresh step, other than applica- to judgment in default. But, on the whole, it appears reason:
not so strong:
There is no defence delivered, and no right tion for an injunction, or for a receiver, or for summary judg- able to suppose that the plaintiff may proceed irrespective of ment under order 14, or to enter judgment in default of defence order 30. It we were right in assuming in the one case that under ord. 27, r. 2." A plaintiff, therefore, may issue a summons under order 14 Committee intended that exception to apply to the whole sub
in making an exception of proceedings under order 14 the Rule without taking out a summons for directions. We will assume that he does so, and that he fails under order 14, and that the sequent course of the action, we are driven to the same assumpdefendant obtains leave to defend unconditionally and without
t n in the other. There is the same power in both cases to any directions being given under ord. 14, r. 8. The question
give directions in giving leave to defend. The only difference we are endeavouring to answer then arises.
is that in the case of a liquidated claim judgment in default The first point is an easy one.
The defendant having motion for judgment.
follows as of course, and in the other case must be obtained on obtained leave to defend, is bound to deliver his defence within eight days from the date of the order (ord. 21, r. 8), and if he
It appears to us, therefore, that when once an action passes fails to do so and the plaintiff's claim is for a liquidated sum necessity of issuing at any stage a summons for directions under
under order 14, the plaintiff is in every case released from the within ord. 27, r. 2, judgment may, under ord. 30, r. 1 (6) order 30. At the same time we candidly admit that the point (supra), be entered against him without order. It appears, is arguable, and that had it not boon one which seems somon expiration of the time for defence, and if none is delivered enter what removed from the probability of a judicial decision in judgment in default. The second point is not so simple. Let us suppose that the
about it. We have discussed it at some length because it is the defendant does deliver his defence. How is the plaintiff to pro- which ought if possible to be removed.
cause, as we have said, of some perplexity among practitioners, ceed ? By ord. 30, r. 1 (6), he is bound “in every action” to take out his summons for directions after appearance and before he "takes any fresh step in the action other than application
DISCLAIMER OF LEASEHOLD PROPERTY IN for summary judgment under order 14." He has made his application under order 14 and has failed; must he now
BANKRUPTCY. revert to procedure under order 30, or can he proceed with the
11. action without doing so, and deliver a reply, and go to trial ? 5. Leare to disclaim (continued).-It has already been stated
We do not pretend to be able to give an authoritative answer that, in giving to the trustee in bankruptcy leave to disclaim to this somewhat open question, but it appears to us that the leasehold property burdened with onerous covenants, the court
may impose terms as a condition of granting the leave, and may affected (Re Rathbone, 56 L. J. Q. B. 504). The costs of the also make orders as to fixtures, tenant's improvements, and application by the trustee are the costs of a proceeding under other matters arising out of the tenancy; and it has been the Act (Bankruptcy Rules, r. 339), and, as a general rule, are mentioned that, where the trustee has occupied the property payable out of the estate (Re Proctor, 8 Morr. 251). with a view to the benefit of the bankrupt's estate, he will not 6. Application to the trustee to decide as to disclaimer.—The be allowed to disclaim except on the terms of paying rent for trustee's right to disclaim under section 55 will be lost if any the period of his occupation. Unconditional leave has been person interested in the property applies to him to decide as to refused also where the trustee has acted for parties with disclaiming, and if the trustee omits to give notice of his deciopposing interests, and it is difficult to say what the real effect sion for twenty-eight days after receipt of the application, or of his occupation has been (Re Crowther, 4 Morr. 100). And such extended period as may be allowed by the court. The where the relationship between the parties is really that of notice may be given by the landlord as a person interested in mortgagor and mortgagee, and the former is merely tenant under the property (Ex parte Mackay, 14 Q. B. D. 401). It is not an attornment clause in the mortgage deed, this will be taken enough that the application has been posted ; it must be into account in considering whether terms ought to be imposed actually received by the trustee, though ordinarily posting is for the benefit of the mortgagee (Ex parte Isherwood, 22 Oh. D. presumptive evidence of receipt (Reed v. Harvey, 5 Q. B. D. 384). It was held under the Act of 1869 that the leave of the 184). To obtain an extension of the period of twenty-eight court was simply a matter as between the trustee and the court, days the trustee should apply to the court before that time has and that the failure to obtain leave did not invalidate the dis- expired (Re Richardson, 16 Ch. D. 613), unless there are special claimer as between the trustee and the landlord (Reed v. Harvey, circumstances to excuse the delay (Ex parte Lovering, 9 Ch. 5 Q. B. D. 184; see Ex parte Ladbury, 17 Ch. D. 532). But the 586), or unless the person giving notice has, by entering into requirement of leave, which formerly only depended upon a negotiations, waived his right to a reply within the statutory bankruptcy rule, has now been introduced into the statute ; and time (Ex parte Moore, 2 Ch. D. 802). The mere fact that the since the trustee is, except as expressly provided, not entitled to landlord has compelled payment of half a year's rent in advance disclaim without leave, and by rule 320 of the present Bank- is not a ground for enlarging the period of twenty-eight days ruptcy Rules a disclaimer of the lease without the leave of the (Re Richardson, supra). court is void, it would seem that at the present time it has no 7. Vesting Orders.-As already observed, the effect of diseffect even between the trustee and the landlord.
claimer is to leave a gap between the lessor and the persons It appears that the court, in considering whether leave to who through the bankrupt have become interested in the lease. disclaim should be granted, will have regard only to the ques. As regards the bankrupt and his trustee, the lease is at an end, tion whether the disclaimer will be for the benefit of the persons but save for this purpose the rights and liabilities of other interested in the administration of the bankrupt's estate, and persons are not affected (section 55 (2)). In order to avoid the not to collateral considerations such as the possible injury which inconvenience of this state of things sub-section (6) provides the disclaimer may inflict upon third parties (Ex parte East and that an order may be made vesting in some defined person the West India Dock Co., 17 Ch. D. 759), though previously to this lease which by the disclaimer has been set at large. The decision it had been held that the trustee ought not to disclaim application for such an order may be made (a) by any person to the prejudice of an equitable mortgageo of the lease by claiming an interest " in the disclaimed property," or (6) by any doposit (Ex parte Buxton, 15 Ch. D. 289). But the contradic- person under any liability in respect of it which is not distion seems to be only nominal, for if the mortgagee wishes to charged by the Act. The property may be vested in (i.) any provent disclaimer he can take an assignment of the lease, and person entitled thereto, or (ii.) to whom it may seem just that covenant to indemnify the trustee (Ex parte Buxton). The the same should be delivered by way of compensation for such granting of leave to disclaim is a matter within the discretion of liability; and the vesting order is made upon such terms as the the court, and therefore not strictly appealable ; and on this court thinks just, subject, however, to the specific directions as ground leave to appeal to the House of Lords has been refused to terms contained in the proviso to the sub-section. (Ex parte East and West India Dock Co., supra). This considera Of the two classes of pereons who may apply for a vesting tion, however, does not absolutely bar an appeal, though if an order to be made, no difficulty has arisen with regard to the appeal is brought it must be done before the disclaimer has been second. Persons may be under liability in respect of the disexecuted. After such execution the lessor's title is complete, claimed property, because they have, as suroties or otherwise, and an appeal will not be entertained (Re Woods, 3 Ch. D. 459), become liable for rent or upon the covenants in the lease, and even for the purpose of getting conditions imposed (Ex parte their right to apply for å vesting order is clear. But with Sadler, 19 Ch. D. 122). The proper course is for the party in respect to persons claiming an interest in the disclaimed protending to appeal to apply for a stay of proceedings pending perty, great doubt at one time existed whether this class in
cluded the lessor. In Ex parte Turquand (33 W. R. 752, 14 Formerly it was held that the period within which the trustee Q. B. D. 405) CAVE, J., took what seems prima facie to be the could disclaim might be extended by the court under the technically correct view that the " disclaimed property” is the general power of section 104 (4), but only upon good grounds, term of years, and since in this the lessor has no interest he and the trustee was put upon such terms as to payment of rent cannot apply for a vesting order. But in Ex parte Shilson (36 and of interest on mortgages as would provent other parties W. R. 187, 20 Q. B. D. 348) the same judge, concurring with being prejudiced (Re Price, 13 Q. B. D. 466). In Ex parte Paterson A. L. SMITH, J., gave, on further consideration, a contrary (11 Ch. D. 908), where the trustee had in no way interfered opinion, and his more mature judgment was confirmed by the with the property, and the bankrupt had remained in pos- Court of Appeal in Re Finley (37 W. R. 6, 21 Q. B. D. 475). session, the trustee was allowed to disclaim after three years, all “It is obvious,” said LINDLEY, L.J., " that a lessor is very much parties being before the court. The Act of 1890, in extending interested in the observance by the lessee of the covenants and the period of three months to twelve months, at the same time conditions contained in the lease, and that he has a very subexpressly provided that such substituted period might be stantial interest in the disclaimed property,' in whatever sense extended, and in Re Baker (8 Morr. 116) leave was given after you take the expression." Possibly this passage does not the lapse of six years, there being no evidence that the land- indicate a very strict adherence to the proper meaning of the lord had sustained any damage by the failure to disclaim before. phrase, but at any rate the rule in Re Finley is now perfectly A trustee applying for leave to disclaim may include several dis settled, and the lessor may apply to have a vesting order made. tinct properties in the same application, so long as there is one He may give notice of application as soon as he is served with landlord or other chief respondent who is affected by the whole notice of the trustee's motion to disclaim, and as a general rule application, although there are other respondents who are he ought to have his order if he brings himself within the secaffected only by part of it (Re Whitaker, 21 Q. B. D. 261). The tion (Re Britton, 61 L. T. 52). It is for the judge who hears court, before granting leave to disclaim, may require such the case to decide whether an affidavit or other evidence is notices to be given to persons interested as it shall think just necessary (ibid.). (section 55 (3)). A notice of motion for leave to disclaim may The terms upon which the vesting order is to be made are to be served out of the jurisdiction on persons whose interests are a considerable extent specified by the proviso to sub-section (6).