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It is not to be made in favour of an under-lessee or mortgages by demise claiming under the bankrupt "except upon the terms
CORRESPONDENCE. of making such person subject to the same liabilities and obliga
THE LAND TRANSFER ACT, 1897. tions as the bankrupt was subject to under the lease in respect
[To the Editor of the Solicitors' Journal.] of the property at the date when the bankruptcy petition was filed.” A mortgagee or under-lessee declining to accept an order
Sir,- To some of us who for the last ten years have been fighting upon these terms is to be excluded from all interest in and against the measure introduced year after year by successive Govern security upon the property. In this case the court may vest the ments to compel recourse to the Land Registry on all future sales of lease in any person liable to perform the lessee's covenants land there is something positively comic in the list of public bodies;
great companies, and eminent personages who have intimated to either personally or in a representative character, freed and dis- the London County Council their dislike to the application of the Act charged from all incumbrances and interests created by the to London. bankrupt. If there is no person so liablo who takes a vesting During the long and weary fight that has been waged against the order, it seems that the proceedings terminate with the refusal various Land Transfer Bills, or ratzer against the compulsory of the under-lessee or mortgagee to come in. They are quite clauses they contained, none of the great companies or personages excluded, and the lessor, without any vesting order, takes the who are now awaking to the consequences of the Act have given any property free from the lease and all interests under it created by assistance to the opponents of the measure, and the profession has
been left to wage the battle almost unaided. the bankrupt.
If Lord Portman and some members of the Ecclesiastical ComIf, however, the under-lessee or mortgagee chooses to take a mission would only have pointed out to the House of Lords those vesting order, he can only do so upon the terms just stated. consequences of the introduction of compulsory registration which In Re Finley (supra) the question was raised, but not decided, are now brought to the notice of the county council; if the Building whether the effect of the proviso was to make the person in Societies' Association and the great railway companies had used their whom the property was vested liable as an original lessee, or influence to enlighten the House of Commons as to the objections only as an assign (see 21 Q. B. D., p. 487). In order to remove title would long since have disappeared from the programme of any
entertained to the proposed legislation, compulsory registration of the doubt and leave the court a free hand in the matter, it was
party or section of a party. But, as is the case with so many other enacted by section 13 of the Bankruptcy Act, 1890, that the matters, it was impossible to get persons outside the profession to court might modify the terms, so as to make the person in take any interest in the subject--they would declare it was a matter whose favour the vesting order is made subject only to the same that did not concern them, and which they did not understand, nor liabilities and obligations as if the lease had been assigned to did they want to understand. him at the date of the filing of the bankruptcy petition. It
The result, however, of the labours of the opponents of the measure has been held, however, that this power is to be exercised only has been the passing of an Act which we whose property is outside under special circumstances, and in general the vesting order the metropolis can contemplate with perfect equanimity, seeing that should require the person in whose favour it is made to take it cannot be put in force in more than one district unless asked for
by the county council of any county that may desire it, and I don't upon himself the burdens of the unperformed obligations, both think we need greatly dread the action of the county councils past and future, to which the bankrupt was liable (Re Walker, throughout England; and as Middlesex or some part of it seems 72 L. T. 330). The mortgagee cannot escape liability either to pretty certain to be the corpus vile selected for the experiment, we take a vesting order or to be altogether excluded by assigning in these parts console ourselves with the belief that Middlesex proto a nominee who holds in trust for him (Re Smith, 25 Q. B. D. perty is so valuable and Middlesex landowners so rich that they will 536).
easily survive the experience, painful though it may be, of this costly
and troublesome experiment at their expense. 8. Proof for injury done by the disclaimer.-By sub-section (7)
But, after all, why has it been so readily assumed that the principal of section 55 any person injured by the operation of a disclaimer sufferers by the system of compulsory registration of title, and of is to be deemed to be a creditor of the bankrupt to the extent of transfer by entry on the register, will be the solicitors ? That the the injury, and may accordingly prove the same as a debt under scheme is wrong and mischievous I hold as strongly as ever I did, the bankruptcy. The measure of the damages, so far as the and I believe it is opposed to the best interests of the profession; but rent is concerned, will be the difference between the rent due I think so only because I maintaia, and always have maintained, under the lease for the residue of the term and the rent now to that the interests of the general public are identical with those of be obtained (Re Llynvi Coal Co., 7 Ch. 28), and it will include their lawyers. If the Act were generally adopted throughout the also the sum required to leave the property in the same state as landowners, especially the small holders of land, for whom a simple
country the persons who would be the principal losers would be the if the covenants had been properly performed. But where the and inexpensive system of transferring land is almost a necessity lease is determinable at any of several periods, the damages will The old-fashioned costs of conveyancing are gone with the ancient be assessed on the footing that it would have been determined forms, and no scales of remuneration will prevent ordinary instruat the earliest of such periods (Ex parte Blake, 11 Ch. D, 572). ments such as conveyances and mortgages being prepared at very If the lease has been made to partners as joint tenants, and the nominal charges. partners are bankrupt, the lessor can prove against the separate In these days when joint-stock banks keep their own forms in estate of each partner, though it has been doubted whether he stock and the manager prepares the great majority of the simpler can prove against the joint estate (Ex parte Corbett, 14 Ch. D. securities that are taken, and when it has become so much the practice, 122).
in some districts at all events, for the vendor's solicitor, on a sale by auction, to offer to prepare the purchaser's conveyance for a fixed and very trifling fee, that one of the recent collections of precedents
contains a form of condition embodying such an offer, solicitors REVIEWS.
cannot expect the same income from the preparation of instruments
dealing with the transfer of land that they earned in the days when BOOKS RECEIVED.
titles covered hundreds of sheets of abstract, and conveyances and Company Law, based on Lectures Delivered in the Inner Temple mortgages were of the length dear to the draftsmen of the olden Hall, at the Request of the Council of Legal Education, with an
time. I myself believe that the actual remuneration of a solicitor ten Appendix containing the Companies Acts, 1862 to 1893, and Rules, found to be larger where the title is registered than where it is not,
or twenty years hence for the conveyance of landed property will be &c. By FRANCIS BEAUFORT PALMER, Barrister-at-Law. Stevens & Sons (Limited). Price 128. 6d.
and I don't think it will be found any easier to dispense with the
services of a trained lawyer when dealing with registered than when Stone's Justices' Manual, being the Yearly Justices' Practice for disposing of unregistered realty. The cost of the conveyance will of 1898. A Guide to the Ordinary Duties of a Justice of the Peace, course be largely increased, and the sufferers will be the vendor and with Table of Statutes, Table of Cases, Appendix of Forms, and purchaser, indirectly also, to some extent, the solicitor, as the costs Table of Punishments. Thirtieth Edition. Edited by GEORGE B. will tend to lessen the number of transactions. KENNETT, Esq., Solicitor, Town Clerk (late Clerk to the Justices of But apart from this, if compulsory registration of title ever Norwich). Shaw & Sons; Butterworth & Co.
becomes general, it will open up a fresh"field for the conveyancers of A Handbook of Public International Law. By, T: J. LAWRENCE, lawyer who told me he had had a large experience in practical como
the next generation, I had a conversation recently with an American M.A., LL.D. Fourth Edition. Macmillan & Co. (Limited).
many States of the Union where registration of titles to Old Age Pensions. By William BIRKMYRE. Glasgow : Aird & real estate was in full operation, and that it is the existence of that Coghill,
system that enables the lawyers to live. The titles get encumbered
with clouds, and the clearing of these clouds is exceedingly remunera- including the Birkbeck and the British Land Societies, who sent in tive to the practitioner, if costly and tiresome to the landowner, and replies on their own initiative. my informant added that he had been somewhat surprised to learn The reasons given for the respective decisions come to are almost that in England the establishment of a complete system of registra- entirely one-sided. Two only of the vestries who favour the tion had been so vigorously opposed by the profession. His informa- experiment give a reason for their decision, but the reasons given on tion confirms my own little experience of dealings with land in the other side are many and various. It would make too great a America, and there is no doubt that the same thing would happen demand on your space to set the arguments out at length, but the in England. Charges on land will get registered, and when paid off opponents of compulsion are almost unanimous in urging that the will not be properly discharged, inhibitions and restrictions will cloud proposed system would add seriously to the difficulty, expense, and the title, and all kinds of disputes and questions will arise from time delay of dealing with property, and that the county of London is to time as to the proper persons to be registered on the devolution of not a suitable county for a doubtful experiment, having regard to the property, the proper form of the restrictions and inhibitions, and the vast number of properties that would be affected and the value, numerous other matters of the same sort.
complexity, and importance of the interests involved. Perhaps I ought hardly to occupy your space with remarks such as The only plea on which a claim to apply compulsion can be these, but it is well that those of us who, inladdition to our professional founded is that compulsion is called for by and in the interests of the interest in the matter, have some concern in it as owners of land, public and of property owners. In the face of the replies sent in to should keep in mind the troubles that are in store in the districts on the council it is hardly conceivable that any member, Moderate or which the compulsory clauses may be inflicted, and the litigation, Progressive, would care to incur the responsibility of allowing the delay, and expense that will be occasioned, especially where, as will too Act to come into operation. Londoners will watch with unusual frequently be the case, the registry is ignored and equitable interests interest the proceedings at the special meeting to be held on the 15th grow up around a title, giving rise to all kinds of questions of of February. The vital importance of every member being in his priority, and when fees are raised, as they most certainly will be place on that day will be understood when it is realized that the Act by statute, if necessary-to make the registries pay.
H. is so framed that if one-third of the members should for any reason Hereford, Jan. 31.
not be present the meeting cannot be held, and in that case compulsory registration of title will take effect in London on the 1st of July next.
J. S. RUBINSTEIN. [To the Editor of the Solicitors' Journal.]
5, Raymond Buildings, Gray's-inn, W.C., Jan. 31. Sir,--The opponents of this Act object to it mainly on the ground that the expense and delay of transferring land on a sale will be increased rather than diminished by the Act. Whether these
THE FINANCE ACT, 1894. objections are well founded or not seems to me to depend in some
[To the Editor of the Solicitors' Journal.] measure, and probably in no small measure, upon the general rules to be made in pursuance of section 22 under section 106 of the Land
Sir,-.I should be glad to know whether any of your co
correspondents Transfer Act, 1875. These rules have not yet been published, can throw light on the following point : although the Act received the Royal Assent on the 6th of August
If duty on a death has been carefully agreed, assessed, and paid in last, and although notice was given of the intention to apply the Act respect of real estate (the office not employing a valuer, as it might), to the county of London on the 19th of November last. The delay can payment of further duty be required after a sale at considerably in this respect leads one to fear that officialism is not about to belie higher prices than the values adopted ? its character for tardiness, while at the same time the non-publica The Act appears to provide for the office refunding duty if too tion of rules will render it impossible for the members of the county much appears to have been paid, but it does not seem to contain any council to decide the important question of the application of the provision for paying further duty in case of undervaluation. Does Act to the county of London, or a part of it, with full knowledge of not this shew that a death duty account honestly settled is not to be all that their decision will involve.
re-opened in favour of the office ? If otherwise, parties would be I have been requested by the directors of one of the principal liable to prove rise in value since the passing of the account, and be banks in the City of London (whom I have the honour of advising) involved by accidental or unusual favourable circumstances. This to make a report to them in regard to the effect of the Land Transfer would be particularly awkward to trustees who may have distributed Act upon that portion of their business which consists in advancing their estate or part of it, supposing they had settled the question of money on deposit of title deeds, and feeling, as I do, that the rules duty. are a material adjunct to the Act, I have postponed my report now
The office sets up that their form of account states that the duty is for some months in the expectation that the rules would be paid “on the basis of this account and subject to rectification if found published.
necessary, .” but this should surely refer to a possible mistake other It seems to me now not unlikely that the Act may come into oper- than a question of valuation. The office is bound by the law, and if ation in a county in which many of the properties on which my it means to apply such a qualification to values, the question arises, clients make advances are situated before I am in a position to teil Is it entitled to do so ? and during what period ? What does
necessary them what course, in my opinion, they should adopt, and what alter
mean? ations should be made in the documents of charge which they are in the habit of using.
J. H. W. N. Jan, 31.
[To the Editor of the Solicitors' Journal.]
Sir,—A. dies since the Finance Act leaving all his estate (realty THE LONDON COUNTY COUNCIL AND COMPULSORY
and personalty) to his only son, who is also sole executor. REGISTRATION OF LAND.
On his death A.'s widow (not the mother of the son, she being a [To the Editor of the Solicitors' Journal.]
second wife) confronts the son with a marriage settlement which, in Sir,— The report of the General Purposes Committee of the London the events that have happened, settles upon her £2,000 at the County Council, issued last week, has been a revelation to many who testator's death. assumed, withou's inquiry, that the Land Transfer Act, 1897, would
The will does not refer to the settlement, and the son knew nothing cheapen and simplify the transfer of property.
of it. There were several years' arrears of interest. In acting for The council deserves every credit for obtaining the views of bodies the son in proving the will, I deducted the above sum and the interest, and classes interested before deciding on the proposal to experi - treating it as a debt due from the estate. mentally adopt compulsory registration of title in the county of
The controller says such deduction was wrong and the son must London. It was hardly foreseen, however, that the result would pay estate duty upon it, and on looking at section 7 of the Act it have shewn such a decisive consensus of opinion against the proposal.
The son can surely make the widow bear this additional The council received in all fifty-seven communications. of this duty notwithstanding section 14. number only thirteen favour the application of the Act to London,
It is wrong that a man should pay duty on an outgoing from whilst the number against amounts to forty-four.
It is a The full the estate. Can you or any one of your readers help me ?
A SUBSCRIBER, significance of these numbers can, however, only be realized when gross case. the character of the replies and the bodies sending them are
Feb. 1. considered.
The replies in favour are confined to twelve vestries or local bodies and one individual. The forty-four replies against include twenty Mr. Justice Bigham will preside at the 66th annual dinner of the United one vestries or local bodies, the Institute of Bankers, the Building Law Clerks' Society, which will take place at the King's Hall, Holborn Societies' Association, the Ecclesiastical Commissioners, the Restaurant, on Monday, the 23rd of May. Auctioneers’ Institute, seven railway companies, amongst them Lieutenant-Colonel Coltman (late of the Inns of Court Volunteers) has the London and North-Western, the Midland, the Great Western, been installed Worshipful Master of the Northern Bar Lodge of Freeand the Great Central, and also eight building and land societies, I masons.
NEW ORDERS, &c.
CASES OF THE WEEK.
Court of Appeal.
No, I. 1st
Feb. Whereas, the Honourable Mr. Justice Gorell Barnes has at my PRACTICE-WRIT-SERVICE - DEFENDANT DOMICILED IN SCOTLAND-AGREErequest consented to sit and act as an additional judge of the Chan
MENT THAT SERVICE AT AN ADDRESS WITHIN THE JURISDICTION SHALL BE: cery Division from the 2nd day of February, 1898, up to the 16th
DERMBD Good Service-ORD. 9, R. 2; ORD. 11, R. 1 (B). day of February, 1898, both inclusive. And, whereas, it is expe This was an appeal from the refusal of Phillimore, J., to set aside the dient that the following causes and matters assigned to Mr. service of a writ of summons. The plaintiffs were corn merchants carry. Justice North, Mr. Justice Kekewich, and Mr. Justice Romer, ing on business at Liverpool. The defendant was a corn merchant resid. should for the purpose only of hearing or of trial be heard or ing at Leith, in Scotland, and carrying on business there under a firm tried before such additional judge. Now I, the Right Honour
By a contract in writing made at Leith the defendant agreed to able Hardinge. Stanley, Earl of Halsbury, Lord High Chancellor sell to the plaintiffs a cargo of 14,000 units of Northern Spring wheat at of Great Britain (with the consent of the President of the Probate, adopted by the London Corn Trade Association, contained the following
The contract, which was in the form Divorce, and Admiralty Division), do hereby, order that the terms-viz., that the buyer and seller agreed that, for the purpose of proseveral causes and matters set forth in the schedules hereto be ceedings, either legal or by arbitration, the contract should be deemed to accordingly transferred from the said Mr. Justice Nortb, Mr. Justice have been made in England and to be performed there, and any dispute Kekewich, and Mr. Justice Romer, to Mr. Justice Gorell Barnes (as wbich might arise under the contract should be settled according to the such additional judge of the Chancery Division) for the purpose only law of England, whatever the domicil, residence, or place of business of of hearing or of trial, and be marked in the Cause Books accordingly. the parties might be or become, and that any party residing or carrying And I do also order that such of the said causes and matters as on business in Scotland or Ireland should be considered as ordinarily remain undisposed of at the close of such sitting be re-transferred resident or carrying on business at the office of the London Coru Trade (without further order) to the said Mr. Justice North, Mr. Justice Association, and that service of proceedings upon
the And this order is to be drawn
by leaving Kekewich, and Mr. Justice Romer.
at the office of the London Corn up by the registrar and set up in the several offices of the Chancery such proceedings to the address in Scotland or Ireland of such
Trade Association, together with the posting of Division of the High Court of Justice.
party, should be deemed good service, any rule of law or equity to the FIRST SCHEDULE.
contrary notwithstanding. The contract also contained, among the
conditions endorsed thereon, a clause providing that disputes should be From Mr. Justice North.
referred to arbitration, and that an award of an arbitrator or arbitrators 1897.
should be final, subject to an appeal to the Committee of Appeal of the
London Corn Trade Association. A dispute having arisen between the Wright v Long 1896 W 1,167 March 27
parties in consequence of the defendant's failure to deliver a cargo in Wortham v Smellie, jun 1897 W 237 March 29
accordance with the contract, the matter was referred to arbitration, and Coghlan v Cumberland 1896 C 3,518 April 1
in the result an award was made by the Committee of Appeal adjudging Morgan v Attenborough 1897 M 8 April 3
that the sum of £7,371 8s. 10d. was payable by the defendant to the plainWillans v Wheable 1896 W 1,443 April 6
tiffs. The plaintiffs issued the writ in this action on the 1st of January, Incandescent Gas Light Cold v Seligman 1897 I 10 April 9 1898, claiming payment of the above sum. The writ, which was an Heidemann v Smokeless Powder Co ld 1896 H 2,375 April 9
ordinary writ of summons for service within the jurisdiction, was served Hallett v Hallett 1897 H 71 April 10
on the 3rd of January by being delivered to the secretary of the London Lascelles, Tickner, & Co ld v Burrell 1896 L 1,048 April 10
Corn Trade Association at the office of the association in the city of Bacon v Wheable 1897 B 42 April 15
London. On the let of January the plaintiffs' solicitors wrote a letter to
the defendant, directed to his address in Scotland, saying that they were Wilson v Wilson 1897 W 446 April 21
instructed to commence proceedings, and that, in accordance with the Twyford v Twyford 1896 T 1,715 April 26
terms of the contract, the writ would be served upon the defendant by SECOND SCHEDULE.
leaving the same at the office of the London Corn Trade Association.
Phillimore, J., having refused to set the service aside, the defendant From Mr. Justice Kekewich.
appealed. It was contended on his behalf that by virtue of ord. 9, r. 2, 1897.
service of a writ within the jurisdiction could only be effected either by
personal service or by substituted service in accordance with an order of Lubbock v Salt 1897 L 1,653 Nov 20
the court or a judge. The parties had no power by agreement between THIRD SCHEDULE.
themselves to alter the rules as to service of a writ: British Wagon Co. v.
Gray (44 W. R. 113; 1896, 1 Q. B. 35). Ord. 11, r. 1 (c) was clearly From Mr. Justice Romer.
intended to prohibit anyone from bringing an action for breach of con. 1897.
tract in the English court against a defendant domiciled or ordinarily
resident in Scotland or Ireland. H Clark & Son v Petrocokino 1896 C 3,184 April 9
Tux Court (A. L. SMITH, CHitty, and COLLINS, L.JJ.) dismissed the Petrocokino v H Clark 1896 P 2,648 April 9 Curtice v General Press Cutting Assoc ld 1896 C 3,266 April 10 ciled Scotchman, iuto court, served him with a writ in the manner in
appeal. The plaintiffs, in order to bring the defendant, who was a domi. Brown v Thorn Thorn v Brown 1897 T 262 April 10
which the defendant had agreed with the plaintiffs that he should be Adams v Page 1896 A 1,341 April 14
served. The question was whether the parties could lawfully make such Armstrong v Lamb 1895 A 1,481 April 14
an agreement. The case of Tharsis Sulphur and Copper Co. v. Société Indus« Lee v Gordon, jun 1896 L 697 April 15
trielle et Commerciale des Metaux (38 W. R. 78, 60 L. T. N. S. 924) was an Beswick-Darley v Myers 1896 B 3,130 April 23
authority showing that such an agreement might properly be made so long Farmer v R Scase & Son 1897 F 46 April 23
as it did not involve asking the court to do something which the rules Davis v Ohrly 1896 D 1,301 April 27
expressly prohibited the court from doing. In British Wagon Co. v. Gray Chambers v Page-Wood 1895 C 944 April 29
the court was asked to make an order for service of a writ out of the juris
diction in a case in which ord. 11, r. 1 (e), said that such an order could Payne v Milward 1897 P 364 April 29
not be made. Bailey v Barrington (North End Cement Syndicate id) 1896 B service of the writ in this case had been effected in the way in which the
Here the court was not asked to make any order. The 4,905 May 10
parties had by their agreement provided that it should be made. There Spottiswoode v Kharaskhoma Exploration, &c, Syndicate (in liqui- | was no rule prohibiting such an agreement.-COUNSBL, McCall, Q.C., and dation) 1877 S 439 May 20
Tindal Atkinson; Joseph Walton, Q.O., and L. Sanderson. SOLICITORS, HALSBURY, C. Murray, Hutchins, f: Stirling; Burton, Yeates, f Hart, for Tyrer, Kenion, F. H. JEUNE, P. Tyrer, & Simpson, Liverpool.
(Reported by F. G. RUCKER, Barrister-at-Law.) The Dublin correspondent of the Times says that in the Chancery
HOCKEY v. WESTERN. No. 2. 1st Feb. Division of the Irish High Court a peculiar question arose in the matter MORTGAGE-EQUITABLE INTEREST – TRUSTEE-DUTY TO PAY TO MORTGAGBE of Agnes Sinclair Cranston, deceased, which came before the Master of -RIGHT TO REQUIRE INDEMNITY FROM MORTGAGER-ACTION BY MORT. the Rolls for the opinion of the court on the effect of certain bequests in GAGEE-LIABILITY OF TRUSTEES TO Pay Costs-CONVEYANCING AND the will of the deceased lady to the London and Manchester Vegetarian LAW OF PROPERTY ACT, 1881 (44 & 45 Vict. c. 41), s. 22, SUBSocieties. The trustees had been advised that the vegetarian societies SECTION 1. were not charities in point of law, and that the gift to them was invalid. This was an appeal from Kekewich, J., who, on the defendants' underThe plaintiffs desired to have the opinion of the court as to the bequests taking to pay iuto court two sum of £300 and £50, had dismissed the to the vegetarian societies. The Master of the Rolls held that the plaintiff's action to have those sums paid to him. The plaintiff and one societies were charitable societies, and that the bequest to them was Oliver Hay (deceased before action brought) were at one time members of valid.
the Southwark Freehold Land and House Property Association, established
by a deed of the 1st of March, 1882, for the purchase of land in England. the court in holding them to be in the wrong because they did not do The defendants were the present trustees of the association. By two that. The appeal must therefore be dismissed, and dismissed with mortgages dated in 1889 Hay assigned to the plaintiff, by way of mort- costs. gage to secure the sum of £600 and interest thereon, (inter alia) all the Rigby and VAUGHAN WILLIAMS, L JJ., delivered judgment to the same money paid by Hay into the association and then standing to his credit effect.-COUNSEL, Warrington, Q.O., and A. Beddali ; Renshaw, Q.C., and therein, and the value of his share and all other (if any) his right, titie, R. H. Spearman. SOLICITORS, R. Chapman ; A. H. Procter. and interest in the association, and the benefit, advantages, and emolu
[Reported by R. C. MACKENZIE, Barrister-at-Law.] ments arising from the same. In December, 1896, Hay died intestate. No legal personal representative was ever appointed. In January, 1897,
MASON v. KEAYS. No. 2. 28th Jan. the defendants furnished to the plaintiff a cash statement showing that the sum of £300 was due to Hay from the association, and subsequently PARTITION -SALE IN LIBU OF PARTITION – PRACTICE-PARTIES—TENANT OF
UNDIVIDED MOIETY JOINED AS DefenDANT-PROPER AND NECESSA RY it appeared that a further sum of £50 was due to him. By a resolution of the members of the association the defendants were authorized to pay to
DEFENDANTS - PARTITION ACT, 1868 (31 & 32 Vict. c. 40), s. 4. each member the sums due to bim on the signature by him of a receipt in a This was an appeal from a decision of Kekewich, J., who had dismissed certain form. The defendants alleged that they had notice that Hay's the plaintiffs' action for a sale, in lieu of partition, of certain leasehold estate was being wound up by bis eon: that the plaintiff, notwithstanding land on the ground that the proper and necessary parties had not been repeated requests, had refused to produce to them for perueal the made defendants. The plaintiffs were the owners of_one undivided mortgage deed, and had also refused to furnish them with any account of moiety of the land in question, and the defendants were Frederick Lovell the moneys still owing in respect of the mortgage ; and that they, the Keays, a solicitor, and one Emile Ruvett. It was alleged in the statement defendants, were willing and bad offered to the plaintiff to pay him 80 of claim that Keays had originally been owner of the other undivided much of the sums owivg to Hay's estate as, upon taking the accounts moiety of the premises, but that he had become bankrupt; and that between mortgagor and mortgagee, might be found to be due to the Ravett alleged that Keays bad granted him a lease of one undivided plaintiff, and upon receiving from him a proper covenant of indemnity moiety of the prenises. The action was brought under the Partition against any claims wbich might arise or be made upon them in respect of Acts, 1868 and 1876, and claimed a sale of the premises, and other relief. the said sums, or in respect of the association. The plaintiff, contending Kekewich, J , held that the necessary parties had not been brought before that under section 22 of the Conveyancing and Law of Property Act, 1881 bim as defendants, and dismissed the action. The plaintiffs appealed. (44 & 45 Vict. c. 41), the defendants were not concerned to inquire Section 4 of the Partition Act, 1868, upon which the question turned, whether any morey remained due under the mortgages, but were bound enacts that “in a suit for partition, where, if this Act had not been to pay over the mortgaged property to the plaintiff, brought an action passed, a decree for partition might have been made, then if the party or claiming payment accordingly, and sought to make the defendants pay parties interested, individually or collectively, to the extent of one moiety the coste. Kekewich, J., decided, on the authority of Re Bell, Jeffery v. or upwards in the property to which the suit relates," request a sale,
Sayles (44 W. R 99; 1896, 1 Cb. 1, that the defendants were entitled to the court shall, unless it sees good reason to the contrary, direct a * refuse to pay the money to the plaintiff until they should be furnished sale." with an accouut as between mortgagor and mortgagee. His lordship The Court (RIGBY, CHITTY, and VAUGHAN WILLIAMS, L.JJ.) allowed therefore, on an undertaking by the defendants to pay the money into the appeal. court, dismissed the plaintiff's action. The plaintiff appealed.
Rigby, L.J., said : In this case an action is brought asking for the The Court (LINDLEY, M.R., and Rigby and Vaughan WILLIAMS, L.JJ.) usual order for enquiries with a view to a sale instead of partition of dismissed the appeal.
certain land. The plaintiffs appear to be the owners of one moiety of the LINDLEY, M.R., said : I do not think we need trouble you, Mr. Ren- leasehold premises wbich they wish to have sold; and certainly they shaw. This case is one of considerable importance to trustees and to make a prima facie case for a sale unless it can be displaced. As one of mortgagees of equitable interests. But it strikes me that we should be the defendants to the action they have the tenant of one undivided moiety going a great deal too far if we were to say that these trustees acted so
of these leasehold premises for the unexpired term of seven years. First ought to be ordered to pay the costs of the proceedings instituted to the statement of claim his interest would be legally and materially unreasonably in declining to accede to the plaintiff's claim that they of all, then, is that tenant of an undivided moiety a proper defendant to
a partition action? I think undoubtedly he is. Upon the allegations in enforce it. I take the law to be as it is laid down by the Court of Appeal affected by partition. In place of being tenant of an undivided moiety in Re Bell, Jeffery v. Sayles (ubi supra). I think that that statement of the he would become by the partition a tenant of a divided moiety. Therefore law is absolutely right; and therefore the only question of real importance wbich we have now to consider is this: What is the effect of section I think the usual partition order should have been made without any 22, eub-rection 1, of the Conveyancing and Law of Property Act, 1881 ? further evidence than is supplied by the pleadings. That sub-section contains words which so a little farther than I quite effect.-Counsel, Warrington, Q.O., and G. J. Wheeler; H. Terrell, Q.C.;
Chitty and VAUGHAN WILLIAMS, L.JJ., delivered judgment to the same had in my recollection. I will read it: “The receipt in writing of a mortgagee shall be a sufficient discharge for any money arising under the
and C. H. L. Keays ; Cannot_and R. 0. B. Lane. SOLICITORS, Joseph power of sale conferred by this Act, or for any money or securities comprised Gibson ; M. S. Rubinstein ; W. B. Glasier. in his mortgage, or arising thereunder; and a person paying or transferring
[Reported by R. C. MACKENZIE, Barrister-at-Law.! the same to the mortgagee shall not be concerned to inquire whether any money remains due under the mortgage." Well, then, speaking generally and shortly, that is now a statutory substitute for the power to give receipts which, before the Act of 1881, was commonly introduced
High Court-Chancery Division. into mortgages ; and the effect of tbat enactment must not be cut down, SOUT! HETTON COAL CO. (LIM.) v. HASWELL, SHOLTON, AND I take it it is quite plain that after that sub-section was enacted
EASINGTON COAL AND COKE CO. North, J. 21st Jan. trustees of funds which are in mortgage are perfectly safe in paying the funds over to a mortgagee, and are
not concerned PRACTICE-REASONABLE CAUSE OF ACTION—Rules or SUPREME COURT to inquire whether anything remains due the mortgage.
ORDER XXV. R. 4-STRIKING OUT STATEMENT OF CLAIM. Certainly they are safe in doing that, if they act honestly and have no These were two motions brought by two defendants to strike out the notice of anything wrong. But is it misconduct if their suspicions are statement of claim as disclosing no reasonable cause of action. The action aroused by the circumstances, and if they say that they are not satisfied was brought for specific performance of an alleged contract by the defenthey ought to pay to the mortgagee, even though there may be a strong dant company (which was in liquidation) by its liquidator for the sale of probability, or even a certainty, of getting a proper discharge? It is no the Easington and Undersea royalties. The defendant company was also answer to them simply to say that they must not seek the protection of lessee of the Pespool royalties. The defendants were the company, the the court-must not pay the money into court under the Trustee Relief liquidator, and Mr. Barwick, a rival purchaser. The liquidator was in Act—but must pay to the mortgagee. If that were so it would be a negotiation both with the plaintiff company and Mr. Barwick, and prorevolution in the law relating to trustees. That revolution has not yet posed that sealed tenders should be sent in to be opened in the presence taken place. It appears to me that the plaintiff's case is gone the moment of the chairman and directors of the defendant company, and concluded : that is admitted, or decided, which Kekewich, J., did decide, and so far as "And the highest net tender I receive, all other things being equal and I can judge very properly. He says: “I cannot see that there was any satisfactory, I will at once accept." Mr. Barwick's tender was as follows : obligation on them (the trustees) to do it, and they would have been well "I hereby offer you the sum of £31,000 for the company's interest in the advised that they should pay the money into court under the Trustee Act Easington and Vndersea royalties, and in addition I agree to indemnify if there were any circumstances which made it reasonable for them to you and the company against all claims and liabilities under the Pespool decline to be satisfied." I think that is an end of this case. We have lease, taking an assignment of the same as from May, 1896, and repaying not gone into the facts closely, but it appears to me that it is unnecessary the £1,000 already paid by the Messrs. Lamb.” The tender by the to do more than state the position these gentlemen, the trustees, were in. plaintiffs' agents was, “Referring to previous negotiations, we, on behalf The mortgagor was dead, and there was no legal personal representative; of the South Hetton Co., offer for these royalties such a sum as will exceed and the trustees knew perfectly well that some controversy was raised by by $200 the amount to-day offered for them by the other intending those who were interested in his estate. They were therefore justified in purchaser, coupled with a transfer of the Pespool lease, if the other offer saying that if they chose to pay to the mortgagee they should get a good be on that footing." The liquidator accepted Mr. Barwick's offer. discharge, but that, having regard to all the circumstances of the par. NORTH, J., said that even if the plaintiffs' tender could be said to be ticular case, tbey did not intend to pay to the mortgagee, and preferred the “highest money tender," it did not fulfil the condition "all other to have the protection of the court. The position taken up by the things being equal and satisfactory." The tender of the plaintiffs mortgagee, on the other hand, is that it was nothing to the trustees included an offer to take an assignment of the Pespool lease, but Mr. whether there was money due on the mortgage or not. The mortgagee, Barwick offered an indemnity dating back eighteen months and to pay the in short, claimed to stand upon bis strict legal rights under the Con- £1,000 paid by Messrs. Lamb. Being satisfied that the plaintiff could not veyancing Act. It would be going a great deal too far to say that the succeed at the hearing he would strike the claim out, although it was not trustees were bound to admit that contention. There is nothing to justify frivolous or vexatious. — COUNSEL, Vernon Smith, Q.C.; Micklem ; R.
Younger; Swinfen Eady, Q.C.; Clare. SOLICITORS, Crossman, Prichard, both Gray v. Smith and Pearson v. Pearson. It was to be observed that Prichard, & Block; Botterell & Roche ; Flux f Leadbitter.
the obligation enforced in Trego v. Hunt was not confined to goodwill, [Reported by G. B. HAMILTON, Barrister-at-Law.]
but extended to other kinds of property. If, for example, the assets
sold by the defendant to the plaintiff had included a house which JENNINGS v. JENNINGS. Stirling, J. 28th Jan.
adjoined land belonging to the defendant, he could not, after the sale, PARTNERSHIP-DISSOLUTION-SALE BY ONE PARTNER OF
build on his own land so as obstruct the access of light to the house which THE ASSETS TO
he had sold. It was true that if the house commanded a sea view the THE OTHER-GOODWILL-INJUNCTION TO RESTRAIN CANVASSING.
defendant could not be restrained from building so as to shut out from This case raised an important question as to the rights and liabilities, the house the view of the sea ; but the reason was that the law did not after a dissolution of a partnership, of the former partners; the question recognize any property in such a view, although it did recognize a right being whether a partner who continued to carry on the firm's business to the access of light to a window. As the law recognized a property in was entitled to restrain his former partner from canvassing the customers goodwill, his lordship thought that the defendant by selling it came under of the old firm. The partnership was entered into under articles dated the an obligation not to do any act which would injure it, and amongst such 25th of January, 1896. In February, 1897, the present defendant com acts was included canvassing of the old customers. His lordship then menced an action against the present plaintiff in the Queen's Bench dealt with a further contention on behalf of the defendant-viz., that the Division, claiming a rescission of the partnership and damages on the word "assets" ought not to be held to include more than would be ground of misrepresentation made by the present plaintiff to the present ordered to be sold if the court were directing & sale for the purpose of defendant. That action came on to be tried on the 22nd of November, winding up the partnership-but expressed no opinion upon the points to 1897, but was at once compromised upon the terms stated in the following which it gave rise, and said that his present decision rested upon the certificate : 'By coneent, the judge directed that judgment should be following findings-viz., that the sale with which he had to deal was not a entered for the plaintiff for £1,200, to include costs, on the following compulsory one made by the court, but was the subject of a voluntary t-rms: All charges of fraud withdrawn. The plaintiff to be indemnified agreement containing no express stipulation reserving to the defendant as to all debts of partnership, and the partuership. to be dissolved, the any right to carry on busioess. His lordship thought, therefore, that the defendant retaining the assets and allowing the plaintiff fourteen days to defendant was subject to the ordinary obligations of a vendor, and that remove from the premises. The other action to be dropped. This in full an injunction ought to be granted. --Counsel, Rashleigh ; Butcher, Q.C., settlement of all disputes." Subsequently, the defendant issued a and Daniel Jones. SOLICITORS, Rashleigh, Son, g Hall; Boyce & Son. circular to the old customers stating that he intended to commence busi
[Reported by W. Scott THOMPSON, Barrister-at-Law.] ness and asking for orders. Thereupon the present action was brought, and this was a motion to restrain the defendant from canvassing the customers of the former business. STIRLING, J., said that the injunction was claimed upon the authority
Winding-up Cases. of Trego v. Hunt (44 W. R. 225), in which it was decided that where the Re NEW BRITISH IRON CO. (LIM), Ex parte BECKWITH. Wright, J. goodwill of a business was sold the vendor, although he might set up a
27th Jan. rival business, was not entitled to canvass the customers of the old business, and might be restrained from soliciting any person who was
COMPANY--WINDING UP-CREDITORS-FEES DUE TO DIRECTORS ---ARTICLES such a customer to continue to deal with the vendor, or not to deal with OF ASSOCIATION-FIXED REMUNERATION-COMPANIES ACT (25 & 26 Vict. C. the purchaser. The obligation to refrain from canvassing the customers 89), s. 38, SUB-SECTION 7. arose out of the relation of vendor and purchaser. The first inquiry, The question which arose in this case was whether the directors of a therefore, must be whether the relationship of vendor and purchaser company were entitled to rank as ordinary creditors in the winding up existed between the plaintiff and defendant, and in his lordship’s judg. for unpaid fees due to them at the date of the commencement of the ment that question must be answered in the affirmative. The judgment liquidation, or whether these fees were a debt which was postponed to was one by consent upon terms agreed and stated by the certificate. The
those of outside creditors under section 38, sub-section 7, of the Com. cuse was not one of a dissolution and sale by the court, but of a dissolution panies Act, 1862. The articles of association of the company required by mutual consent, one of the terms being in substance a sale by the directors to possess a share qualification, the question of their remuneraplaintiff of all his interest in the assets of the partnership for £1,200, tion being dealt with in article 62, which was as follows: “The remun: and indeed this was not disputed by the defendant. Next, was thé eration of the board shall be an annual sum of £1,000, to be paid out of defendant the vendor of the goodwill?. He sold all his interest in the funds of the company, which sum shall be divided in such manner as the “aseets” of the partnership. Goodwill was not expressly mentioned. It board shall from to time time determine.” It was argued on behalf of the was not disputed that the word "assets" included goodwill so far as it directors that Re Leicester Club and County Racecourse, Ex parte Cannon (34 constituted property, but it was contended that the defendant was not W. R. 14, 30 Ch. D. 629), was distinguishable, as in that case no remun. such a vendor as to give rise to the obligation on which the plaintiff's eration was fixed, while here a distinct and fixed sum was mentioned. title to an injunction rested. The word assets was a compendious WRIGHT, J., held that Ex parte Cannon (supra) was distinguishable, as expression for the aggregate of the several items of property belonging to the directors, having been appointed and having accepted their office on the partnership. An agreement for the sale of such assets would in most the terms of article 62, they obtained thereby a contractual right to an cases bear the same construction and have the same effect as if the annual sum of £1,000 as remuneration, and that this case was within the several items of property were specifically enumerated either in the body principle of Re Dale f Plant (38 W. R. 409, 43 Ch. D. 255), the sum being of the agreement or in a schedule annexei to it. There were, however, due to them, not as members of the company, but under a separate and two cases binding on his lordship, which were said to establish that this distinct contract; they were therefore not within section 38, sub-section was not always so. His lordship then referred to the cases of 7, of the Act of 1862.- COUNSEL, Dighton Pollock ; Howard Wright. SOLICIGray v. Smith (38 W. R. 310) and Pearson v. Pearson (32 W. R. 1006), and ToRS, J. Beckwith ; Freshfields & Williams. said that as to the point for decision neither of those cases covered the present. Gray v. Smith did not, for it related to the use of the trade
[Reported by C. W. MEAD, Barrister-at-Law.] name and not to the canvassing of customers. It was, however, an authority in favour of tbe defendant to this extent, that it decided that a contract for the sale of “ assets” generally did not always confer on a purchaser the same rights as one in which goodwill was specifically
High Court-Queen's Bench Division. mentioned. Neither, again, did Pearson v. Pearson, for all the learned ROGERS v. MANCHESTER PACKING CO. Div. Court. 27th Jan. judges relied on the terms of a clause, no equivalent to which was found in the agreement with which his lordship had here to deal. It appeared,
FACTORY ACTS-DEFINITION OF FACTORY -“ BLEACHING
AND DYEING however, to be an authority in favour of the plaintiff so far as it contained
WORK8"-FACTORY AND WORKSHOP ACT, 1878, s. 93. expression of opinion by the majority of the Court of Appeal that, under This was a case stated by the stipendiary magistrate of Manchester. a clause not substantially differing from the agreement now before the The respondents were charged on an information with employing a young court, the defendant was not entitled to canvass customers : while the person in their factory after 8 p.m., contrary to the provisions of the third member of the court (Cotton, L.J.) apparently was not of that Factory Acts. The magistrate held the respondents' premises were not a opinion. It appearing, therefore, that in some cases à contract for sale “ factory " within the definition in section 93 of the Factory and Workof assets did not confer on a purchaser the same rights as if the items of shop Act, 1878, and on that ground dismissed the information subject to which the assets consisted, and in particular the goodwill, were specifically this case. Section 93 provides that the expression "factory” includes both enumerated, it became necessary to inquire in what cases this happened. textile and non-textile factories, but that bleaching and dyeing works On a sale of property the parties did not in general contemplate the shall not be deemed to be textile factories. The expression : possibility of personal liabilities on the part of either contracting party factory” means : (1) any works, warehouses, arising otherwise than out of the contract itself. If then the purchaser in part 1 of the fourth schedule to this Act. The fourth schedule, part 1, tried to use some part of the purchased property (such as the trade name) is as follows: "Bleaching or dyeing works-that is to say, any premises in such a way as to throw on the vendor a liability not directly arising in which the processes of bleaching, beetling, dyeing, calendaring, farfrom the relation of vendor and purchaser, it might well be that he nishing, hooking, lapping, and making up, and packing any yarn or cloth should not be allowed to do so unless he could psint to something of any material, or the dressing or finishing of lace, or any one or more of in the contract which justified his act over and above the mere such processes, or any process incidental thereto, are or is carried out.” decription of the subject - matter of the sale in general terms The facts as to the respondents' premises were as follows: The responsuch as “ assets," "interest,' property," and the like On the other dents carried on at their premises the business of makers up and packers, hand, if a vendor sought to exonerate himeelf from a liability which which consisted exclusively of the hooking, lapping, making up, and would be the ordinary consequence of a sale of property comprised in the packing of cloth for exportation. In the course of their business the contract, his lordship thought that he ought not to be allowed to do so respondents received cloth from their employers, the shipping merchants, unless he could point to some express stipulation in the contract for sale in the finished condition in which it was received from the manufacturers. enabling him in that bebalf. This view appeared to be consistent with The respondents measured and cut the cloth into lengths, and the lengths
non-textile or places named