Suitable clauses, settled by Counsel, can be obtained on application to
THE LICENSES INSURANCE CORPORATION AND J Lyons & Sons v. Wilkins and Others 253

MR. RUBINSTEIN draws attention in another column to a matter Special forms of Policies have been prepared to provide for payment of ESTATE DUTIES. to which we referred a fortnight ago in regard to the letter Full Prospectuses on application.

LEGAL AND GENERAL LIFE ASSURANCE mend the application of the Land Transfer Act to London to be

ONE OF the Probate Rules requires that every testamentary one tenant to another tenant unless the first tenant had been in paper shall be marked (or signed) by the person proving it and occupation of the house for at least twelve months. Shortly by the commissioner before whom he is sworn. In complying after letting a certain house to a new tenant, the owner sold the with this rule it is a common practice for the executor and com- house, and the purchaser, wishing to have a person of his own missioner to place their signatures close against those of the choice in the house, got rid of the tenant whom he found in testator and witnesses, and occasionally an executor who is a possession, and the new tenant in due course applied for a legatee is allowed to sign his name beneath the attestation transfer of the licence. It was admitted that the applicant was clause, necessitating a certificate by the commissioner that the a man of good character, and that the house was a quiet and signature was written on the occasion of his being sworn, in orderly one; but because of the rule above referred to the order to prevent his legacy being at some future time disputed magistrates would not listen to the merits of the case, and on the ground that he had signed as a witness. The desire has refused the application. A few days ago an appeal from this been expressed by the authorities of the Principal Probate decision was heard at the Clerkenwell Sessions. The transfer Registry that the signatures of executors and commissioners was granted, and the appeal allowed with costs. There have, should be kept as far as possible from the writing of the will we believe, been other cases of successful appeal to the same itself, and that they should be written on the blank page or court of an almost precisely similar nature. It can hardly be fly-sheet where there happens to be one. doubted, in the face of decided cases, that justices have no right to make general rules to fetter their discretion in dealing with cases which come before them. Since Sharp v. Wakefield (39 W. R. 561; 1891, A. C. 173) it is established beyond question that justices have complete discretion to grant, renew, or transfer licences; this discretion, however, must be exercised judicially, and it was plainly stated in the judgments of the House of Lords that it is improper for justices to express a general intention to deal in a certain manner with all licences, and that it is their duty to consider each individual case on its own merits. In Reg. v. Justices of Walsall (18 J. P. 757) the respondents had passed and made known a resolution that they would grant no new licences. Consequently, when the appellant applied for a new licence, they refused to even hear what he had to say. The High Court, however, held that magistrates cannot exercise the discretion reposed in them without hearing the facts and arguments which the applicant is prepared to adduce; that justices are judges to hear and determine, and they are not to determine first and hear afterwards. Accordingly a mandamus was granted ordering the respondents to hear the application. Again, in Reg. v. Sylvester (26 J. P. 151), the justices of Abingdon had adopted a rule not to renew the licences of any persons who refused to take out an excise licence to sell spirits. Here again it was held that refusing a renewal merely in con. formity with this rule was not a proper exercise of discretion by the magistrates. Any general rules for refusing either new licences, renewals, or transfers should be made by Parliament, not by magistrates. It is quite plain that any general rule which justices can make may possibly work injustice in some particular case, and that for justices to refuse to hear a case on its merits is a denial of justice and an abuse of the wide powers entrusted to them.

A CORRESPONDENT, whose letter will be found in another column, calls attention to the discrepancy between the statement contained in our article last week, to the effect that where no defence is delivered in an action for a debt the plaintiff may enter judgment in default without order, and the paragraph in the Annual Practice, 1898, under ord. 27, r. 2, stating that an order is necessary. There is no doubt that the paragraph in question was correct at the time of the publication of the Annual Practice; for if our correspondent will look at our remarks on the subject in a former issue (ante, p. 2), he will see the first intimation which was given that the ambiguous passage in ord. 30, r. 1, was to be read so as to exclude the necessity for an application for leave to enter judgment in default of defence. Up to that time, we believe, no judgments in default had been entered without order since the 25th of October. Although no rule or direction was published, it appears from a statement in Mr. STRINGER's pamphlet on The Summons for Directions (p. 21), that "instructions were received at the Judgment Office that judgments in default of defence on claims for liquidated demands under ord. 27, r. 2, were to be entered without order, and without any application for leave." Although, therefore, an order was at first considered necessary in these cases, it has

now ceased to be so.

THE DECISION of WRIGHT, J., in Re Land Mortgage Bank of Florida (Limited) (reported elsewhere) is an important recognition of the fact that it is still possible to carry out the voluntary liquidation of a company free from official interference. The company having got into difficulties, and being unable to meet its obligations under its debentures, went into voluntary liquidation, and a scheme was arranged whereby the uncalled capital was to be called up, and a part of it applied in paying a first dividend to the debenture-holders. Any surplus of the proceeds of the call was to be applied at the discretion of the liquidators for management and other expenses. It was apparently anticipated that the company would ultimately overcome its difficulties, and the scheme gave the liquidators large powers with a view to the protection of the assets. The scheme was sanctioned by the court under the Joint-Stock Arrangement Act, 1870, and in pursuance of it a trust deed was executed which bound the liquidators to the due application of the funds in their hands. It has now, however, been contended on behalf of the Board of Trade that, notwithstanding the control conferred upon the liquidators with the immediate sanction of the court, they are bound to pay into the Companies' Liquidation Account under section 15 (3) of the Companies Act, 1890, the balance of the calls in their hands as being "undistributed assets" of the company within the meaning of the section. Undistributed, of course, in a literal sense they are, but their distribution has been already duly provided for, and to have applied the section would have been to withdraw from the liquidators the discretionary power of management which the court had vested in them. WRIGHT, J., declined, accordingly, to order the payment over of the fund.

THE LICENSING justices of the Strand Division adopted some time ago a resolution not to allow the transfer of a licence from

THE DECISION of the Court for Crown Cases Reserved, last Saturday, in Reg. v. Rose, (reported elsewhere) is not of much value upon the point on which the case was stated, as the court could hardly have decided otherwise than it did without overruling many cases of very great authority. The prisoner had been indicted at the Norfolk Quarter Sessions for stealing several things from his master on different dates, and there was little evidence against him except his own alleged confession. As to some of the stolen property the alleged confession seems to have been voluntary; but as to the rest of the property it was clearly shewn in crossexamination that the confession was induced by the master telling the prisoner that it would be better for him if he told the truth. The chairman refused to withdraw any of the evidence from the jury, and the prisoner was convicted, and sentenced to two months' hard labour, and though a case was stated, bail was refused. Now, a confession to a person in authority in order to be admissible must be voluntary—that is, it must not be obtained from the prisoner by holding out to him any hope or fear, and when a master is the prosecutor it is well established that he is a person in authority. To mention but one out of many cases, Reg. v. Fennell (29 W. R. 742, 7 Q. B. D. 147) is conclusive that the words of inducement used in this case were sufficient to make the resulting confession inadmissible. The confession, however, as to some of the property, seems to have been voluntary, and therefore admissible. But as all the counts were left to the jury, and a general verdict of "guilty" given

on the whole indictment, it is obviously impossible to say how far the inadmissible evidence had acted upon the minds of the jury, and the conviction could not possibly stand. This case is, however, of some importance, especially to counsel and solicitors, because of the strong opinion which was expressed by the Lord Chief Justice as to their duty when acting for the prosecution in a criminal case. He laid it down that no counsel or solicitor ought to offer any evidence of a confession by a prisoner unless he has satisfied himself that the evidence is legally admissible; and that a prosecuting counsel, when examining a witness as to a confession said to have been made by the prisoner, ought to first shew that the circumstances attending the confession were such as to make it legally admissible. Clearly this is the fair course to the prisoner, for if it is left to cross-examination to shew that the confession was not receivable in evidence, the jury have already heard it, and it is of little practical use for the judge to tell them to disregard it; while to discharge the jury and begin again with a fresh jury—which is the only other proper course is a most serious waste of time. The rule laid down by the Lord Chief Justice is also consistent with the impartiality which should mark the conduct of a criminal case by counsel for the Crown. As to the attitude which prosecuting counsel ought properly to assume, BLACKBURN, J., in the case of Reg. v. Berens (4 F. & F. 842) said that "it had always hitherto been the supposition in the administration of criminal justice, as a general rule, that the prosecuting counsel was in a kind of judicial position; that while he was there to conduct his case he was to do it at his discretion, but with a feeling of responsibility--not as if trying to obtain a verdict, but to assist the judge in fairly putting the case before the jury, and nothing more. At Nisi Prius the counsel was at liberty to try to get his client a verdict, if possible, by fair and proper means. In a court of criminal jurisdiction the counsel for the prosecution was in a different position." No doubt this is, to some extent, a counsel of perfection, and in the heat of advocacy it is difficult to be quite impartial when one's opponent is making use of every artifice on his client's behalf. This attitude ought, however, to be the aim of every prosecuting counsel, and many well-known advocates have nearly attained to it.

Re Bell applied, and that since the trustees were not in a position to administer the fund themselves, it was proper to pay it into court. It was admitted that trustees might safely pay over to the mortgagee under sect. 22 in cases where there was no notice of anything wrong, but having regard to both these decisions, it must frequently happen that a mortgagee of an equitable fund cannot get paid except by proving his claim in court or by obtaining the concurrence of the other persons entitled. This is a considerable hardship upon first incumbrancers who look for speedy payment when the fund becomes available.

THE OBJECT of taking a mortgage of leaseholds by way of sub-demise is that the mortgagee may not become directly liable upon the covenants contained in the lease. If he goes into possession he may, indeed, be compelled to perform the covenants in order to avoid a forfeiture, and if his mortgagor becomes bankrupt he may have to take a vesting order and assume the mortgagor's liabilities, or else abandon his security. But otherwise he incurs no immediate liability. An attempt to alter this state of affairs was made in the recent case of Bonner v. Tottenham Building Society, before CHANNELL, J. A mortgagor who was the assignee of a lease mortgaged the lease by way of subdemise of the whole term except the last day. By the mortgage the mortgagor agreed on demand to do all things necessary for assuring to the mortgagees the remainder of the term, and the mortgagees covenanted with the mortgagor that, if they entered into possession and received the rents and profits, they would pay the rent of £20 reserved by the original lease. The mort gagor became bankrupt, and the mortgagees entered into possession and received the rents and profits, but did not pay the head-rent. The plaintiffs, who were the original lessees, paid it, and sought in the present action to recover the amount from the mortgagees. Had the latter been assignees of the lease, they would have been liable upon the well-known principle that each successive assignee of the lease is liable during the period of his ownership to indemnify the original lessee. In Moule v. Garrett (L. R. 7 Ex. 101) this was put upon the ground that where A. has been compelled by law to pay, or, being compellable by law, has paid, money which B. is ultimately liable to pay, so that B. obtains the benefit of the payment by the discharge of his liability, then A. is entitled to recover the amount from B. But this assumes that B. is actually liable to make the payment, and where this element is wanting B. is not bound to indemnify A., even though he gets indirectly the benefit of A.'s payment. Hence, in the present case, CHANNELL, J., held that the mortgagees, notwithstanding their possession and their agreement with their mortgagor for payment of the rent, could not be compelled to reimburse the original lessees. They were under no direct liability to the lessor, and the principle of Moule v. Garrett did not apply.

IT IS a little over two years ago since considerable interest was aroused by the decision of the Court of Appeal in Re Bell, Jeffery v. Sayles (44 W. R. 99; 1896, 1 Ch. 1). Under section 22 (1) of the Conveyancing Act, 1881, the receipt in writing of a mortgagee is a sufficient discharge for any money or securities comprised in his mortgage, and a person paying the same to the mortgagee is not to be concerned to inquire whether any money remains due under the mortgage. In reliance upon this provision and upon the corresponding clause in mortgages prior to the Conveyancing Act, it was becoming the practice for trustees of funds and for insurance societies to pay over to the mortgagee the whole of the money due to the beneficiary who had mortgaged his equitable interest, or in respect of the mortgaged THE JURISDICTION of the county courts under section 68 of the policy, and to leave the mortgagee to administer the fund. Friendly Societies Act, 1896 (59 & 60 Vict. c. 25), was in conThus he would retain what was due to him for principal, troversy in the recent case of Re Hogg, Ex parte Parkin. That interest, and costs, and would hand over the balance (if any) to section, while in substance providing that every dispute between the mortgagor or the next incumbrancer, as the case might be. a member of a society within the Act and the society itself or a But this convenient practice was upset by the decision in Re branch or officer thereof, shall be decided in manner directed by Bell. Inasmuch as the court, if the fund were in court, would the rules of the society or branch, enables the county court to not pay the whole of it to the first incumbrancer, but would hear and determine the matter in dispute where either the rules ascertain what was due to him and only pay him so much, it contain no directions as to disputes or no decision is given within was held that the trustee ought to do the same; or, at any rate, forty days after application for a reference under its rules has that he could not be compelled to pay the whole fund to the been made in succession to all the bodies entitled to determine mortgagee. The decision in Re Bell assumed that the trustees the dispute under the rules of the society or branch. In the had notice of subsequent incumbrances. In the recent case of case under consideration, the rules of the society (the Ancient Hockey v. Western (ante. p. 232) before the Court of Appeal, Order of Foresters) provided that all matters in dispute therethis element was absent, but there were other circumstances under should be referred to the Arbitration Committee of the which, in the opinion of the court, made it proper for the court, subject to an appeal to the District Arbitration Comtrustees to decline to hand over the whole fund to the mort-mittee, and to a final appeal to a committee elected by all the gagee, notwithstanding that it appeared to be considerably less districts of the Order. It was held that a claim by a member than the amount due on the mortgage. The mortgagor was against the society for a fixed rate of sick pay per week during dead intestate and no personal representative had been ap- illness higher than that actually paid to him by the society gave pointed, and the trustees had notice that there was a dispute rise to a dispute under the rules which could only be heard or as to the mortgage debt. It was held that the principle of determined by the county court within forty days after the

claimant had exhausted all the remedies prescribed by them. In' granting the prohibition, PHILLIMORE, J., said he doubted whether, notwithstanding Broad v. Perkins (37 W. R. 44, 21 Q. B. D. 533), the writ of prohibition was discretionary, except where it was applied for by a stranger to the proceedings or where the conduct of the applicant was so improper as to dis-adjustment, there was enough material for the court to proceed entitle him to the remedy.

of action gone on a voyage to China. Application was made to stay proceedings till the ship returned and the log-book could be produced. But upon the case being transferred to the Commercial Court, the judge decided that since a copy of the material entry in the log-book was to be found in the average upon without waiting for the log-book itself. In practice there has been found to be no difficulty in trying commercial cases on the evidence prescribed by the orders made in chambers, and there is a great saving in cost as compared with the methods adopted in ordinary litigation. The whole case, from start to finish, is under the immediate supervision of the judge, and thus he can at once give such directions as shall encourage the prompt and economical prosecution of the litigation, and discourage all that tends to expense and delay.

A NOVEL and unsuccessful attempt to invoke the jurisdiction of the county courts was recently made in the case of Burrow v. Tilson. There the curate of a parish sued his vicar for the amount of his stipend in the Court of the Chancellor of the Bishop, by whom a writ of sequestration was directed for the amount due and costs. The sequestrators having levied out of the living the sum of £79, carried in their account before the Judge LUMLEY SMITH, in the remarks he made in the course chancellor, shewing a balance of £10 10s. due to the vicar, who, of the debate, carried the origin of the Commercial Court a step thereupon, brought an action in the county court to recover further back than the initiatory suggestion of Mr. Justice £49, alleged by him to be the proper amount of the balance. BARNES' impromptu arbitration. He claims that it is, after all, The county court judge held that he had no jurisdiction in such no more than an adaptation from the procedure of the county a case, as the matter in dispute had already been adjudicated courts. There, he points out, it is the practice to allow each upon by a court of record. This decision was affirmed by the side to state its case and at once receive a judicial decision Divisional Court and also by the Court of Appeal, who con- without the delay caused by pleadings. The rich City mersidered that the action was really brought to re-open the certifi-chants, he says, are beginning to find that a procedure which cate given by the bishop's chancellor in his court, by which the account of the sequestrators had been closed and approved of.

ence.

THE COMMERCIAL COURT.

was good enough for the humbler litigants was good enough for them. Of course, all attempts at the speedy administration of justice must aim at bringing the parties as soon as possible face to face before a judge, and in this respect the Commercial Court and the county courts naturally approximate. But now that the success of the Commercial Court is assured the question of the application of its methods to other departments of litigation cannot be much longer delayed. The personal oversight of the judge is likely to be as efficacious in securing speed and economy in ordinary cases as in commercial cases, and the latter class are entitled to no special privilege.

INTERESTS TAKEN IN DEFAULT OF APPOINT

MENT.

THE debate at the Article Club on the 2nd inst., on "Commerce and the Law," under the presidency of Mr. JOHN CUTLER, Q.C, naturally turned very much upon the procedure and the pros. pects of the Commercial Court. Mr. Justice BARNES, in his contribution to the debate, claimed that to some extent he was concerned in the initiation of the idea of the court. Shipping matters, as is well known, frequently cannot wait for the dilatory methods which from time immemorial have been thought suitable for the adjustment of ordinary disputes. One day, when the learned judge was at the bar, the two sides in a dispute relating to a cargo came to his chambers, and in ten UNDER the ordinary trusts of a marriage settlement the settled minutes obtained from him a decision which settled their differ- property is held upon the death of the husband and wife for This incident suggested to him the desirability of such of the children as the husband and wife or the survivor enabling commercial men to bring their disputes quickly before shall appoint, and in default of appointment for all the children someone trained to dispose of them, and the suggestion, it must equally. So long, therefore, as no appointment is made the now apparently be assumed, was the origin of the Commercial children have vested interests under the latter trust, but these Court. So far as rapidity of procedure is concerned, the court has are liable to be divested by the exercise of the power, and they already amply justified its existence, and some incidents related then take such interests as the parents choose. If the power is by Mr. CUTLER in his interesting speech shew that in this respect exercised in favour of an only child or of all the children it can almost rival the friendly arbitration from which it sprang. equally, the actual interest taken in the property is not altered, An action was commenced on the Monday before last Christmas, but the interest vests under a different title, and the change may the question involved being one of agency. Everything was at have an important effect upon a settlement which a child has a dead-lock in the business until the question was disposed of, previously made of his share. Technically a settlement which and unless a decision could be obtained at once, the matter purports only to deal with the interest taken in default of must have gone over the Christmas vacation. In fact, however, appointment does not comprise the interest which is taken under the case was disposed of in the Commercial Court on Christmas the appointment, and in the recent cese of Lovett v. Lovett (46 Eve. In another case there was a dispute on a marine policy, W. R. 105) ROMER, J., adopted this as correct. The same view and it was important to prevent the ship from being detained at was taken also by JESSEL, M.R., in Sweetapple v. Horlock (27 her foreign port. The writ was issued on a Monday, and the W. R. 865, 11 Ch. D. 745), though the earlier cases are by no judge ordered it to be served at once and the case heard at means clear upon the question. 10.30 on the following day. The decision, accordingly, was given on Tuesday and went out by that night's mail.

These, of course, are exceptional cases, but it is generally admitted that the speed of the Commercial Court leaves nothing to be desired. It is said that the average time of disposing of a case from the date when it is commenced to the obtaining of judgment is about six weeks. The key to the procedure is the fact that the matter comes at an early stage before the judge, and that, with the assistance of the parties, he is able to put it in train for speedy decision. Interlocutory proceedings are discouraged, and the delay and expense caused by the technical rules of evidence are avoided as far as possible by obtaining admissions from the parties and by relying upon such evidence as would be satisfactory to a mercantile arbitraMr. CUTLER mentions a case of an action on a marine policy, depending on deviation, where the ship had at the date

tor.

In Re Frowde's Settlement (10 L. T. 367) certain funds were by marriage settlement settled upon trust for the children of the marriage as the survivor of the husband and wife should by will appoint, and, in default of appointment, for the children of the marriage equally. There was only one child of the marriage, a daughter. Upon her marriage a settlement was made by which she covenanted to settle all property vested in her at the date of the marriage. After the marriage there was an appointment under the parents' settlement to the daughter absolutely, and the question arose whether the interest which she then took was property vested in her at the time of her marriage so as to be bound by the covenant in her marriage settlement. WOOD, V.C., held that it was. She was entitled, he said, in default of appointment to the whole fund, and the appointment did not in any respect change her interest. He suggested that it might be different in regard to real estate