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This section is clearly incorporated in the Local Government Act, 1888, and therefore applies to county council elections. There is also authority (if authority be needed) for the exercise of this power in cases of failure toelect county O0'l1l10lll0l'B (_see Reg. v. West Sitssaz: County] C'ounc1'l, 73 L. T. 566). The d1fliculties occasioned by the death of the candidate haye thus been got over. The election is to be held on the 14th 1nst., so that when the first meeting of the county council is held on the following day, that body will be properly constituted.
Tun BILL which has been introduced by Mr. Wann, under the title of the Solicitors’ Final Examination Bill, proposes to make a further concession to students who desire to be admitted as solicitors. At present all candidates, whatever may be their qualifications, are bound to pass the final examination, although students who are graduates in arts or law of a British university are required to serve articles of clerkship for cnly three years, and students who have matriculated may be admitted after four years’ service. The object of the Bill is to enable the Council of the Incorporated Law Society to exempt from the “final” students who have obtained certain law degrees, or have passed the examinations necessary for that purpose. Clause 3 proposes to enact as follows: The Incorporated Law Society may, by regulations made under section 6 of the Solicitors Act, 1877, exempt from the whole or part of the final examination persons who have obtained “the degree of Bachelor of Civil Law, or Bachelor of Laws, or Bachelor of Law by examination at any university in the United Kingdom, or a certificate of having passed the examination required for such degree,” or who have obtained “by examination any such other degree or distinction in any school or faculty of law or jurisprudence at any such university as shall be from time to time specified in the said regulations, or a certificate of having passed the examination required for such degree or distinction.” Provision is also made for the Incorporated Law Society to enter into arrangements with the university authorities with respect to the conduct of the qualifying examinations and for the appointment of examiners nominated by the society. The Bill does not relax the present statutory conditions as to service under articles of clerkship. It will, on the other hand, render the time of service more fruitful by enabling students to get through the theoretical work of examinations before practical work is taken up. In this respect it will, if passed, prove very beneficial.
WE PRINT elsewhere a report issued by the County Courts Committee of the Incorporated Law Society, and adopted by the Council, which contains numerous suggestions for the alteration of county court procedure. The question of court fees has long been a pressing one. By a singular anomaly the county court, which is supposed to be the poor man's tribunal, requires, at the commencement of the proceedings, a fee considerably higher than that in the High Court. A writ in the High Court, whatever the amount sued for, only costs a fee of 10s.; the issue of a plaint in the county court for £20 or upwards costs £1. The hearing fee in the county court is £2, just as in the High Court. The total receipts and expenses are given in the report in a manner which shews very clearly the comparative results of the two systems. For the year 1894-95 the fees received in county courts were £460,956 ; the cost of the courts was £597,436, leaving a debit of £136,480. The fees in the High Court were £397,632 ; the cost was £725,892, and the debit was £328,260. Thus the county courts go a great deal nearer to paying their way than the High Court. In principle‘ there is no justification for this difference, and if, under either jurisdiction, justice is to be administered at the public expense, the county court suitors appear to have as good a claim to consideration as those in the High Court. The committee recommend, accordingly, that the existing scale of court fees should be revised, so that in claims under £20 the oundage on issuing plaint, and on hearing, should be reduced by onehalf, and in claims between £20 and £50 a uniform plaint fee of 10s. and hearing fee of £1 should be charged; in claims over £50, the corresponding fees being 10s. and £2; with reductions also for the fees on execution. This policy of overcharging for
the services of the court has made it impossible to secure proper provision for the services of solicitors. For instance, in the case of a default summons for £20, the court gets a fee of £1, while the solicitor, for the multifarious details to which he has to attend, is allowed a fee very little in excess of this amount. The committee propose to make, at an early date, a supplemental report, dealing with costs only, and the present report does not suggest any extensive alterations ; but they recommend the allowance of fees on judgment summonses and on issuing executions, and also, in cases of £20 and upwards, a special allowance to a solicitor-advocate for preparing for and conducting hearing of not less than £2 2s., and not more than £10 10s., the amount to be fixed on taxation.
In ADDITION to court fees and costs, a number of questions of importance are considered in the report of the County Courts Committee. In certain directions the jurisdiction of the county courts is non-existent; in others it is severely limited. The committee recommend that county courts should have jurisdiction over actions for libel, slander, and breach of promise of marriage where the damages claimed do not exceed £100. This would have the effect of removing from the High Court a large number of actions which it could very well spare. The proceedings in county courts would be correspondingly enlivened, and doubtless these classes of actions would be largely increased. This encouragement to an undesirable form of litigation is nu reason, however, why the High Court should not be relieved of its exclusive jurisdiction. The convenience of advocates attending county courts depends very much upon the adoption of some such arrangement for fixing days of hearing as that which the committee suggest—namely, the fixing of special days for jury and remitted cases, and also for cases over £20 in which counsel or solicitor appears; and the county court judges will be considerably relieved by the conferring on the registrars, as is proposed, of jurisdiction (without consent) in contract cases between £2 and £3, and, with consent, to hear and determine all money claims between £5 and £50. The question of consolidating the work of the London county courts is one which calls for early treatment, and the committee support the proposed scheme for a central court for the hearing of cases remitted from the High Court. In view of the congested state of business in the Metropolitan county courts, it is suggested that, till this is done, remittal orders under section 65 of the County Courts Act, 1888, should only be made under special circumstances. The report also contains suggestions with reference to procedure upon default and udgment summonses, and with a view to obtaining prompt execution of warrants. Another matter referred to is of considerable practical importancenamely, the inconvenience of the present practice of forwarding notices by the court officials to the litigants themselves, although there is a solicitor duly authorized to accept service of all process. The committee recommend that in all cases where a solicitor giving his address signs particulars of claim or notice of defence, court communications should be sent to him.
Tan Couar of Appeal have affirmed the recent decision of the Divisional Court (Wmonr and KENNEDY, JJ.) in Ra Humphreys (ante, p. 83), on the jurisdiction to make a charging order in favour of a solicitor on propert recovered through his instrumentality. By section 28 of the Solicitors Act, 1860, it is provided that whenever a solicitor is employed to prosecute or
efend any proceeding in a court of justice, the court may declare the solicitor to be entitled to a charge for his costs upon the property recovered or preserved. Ordinarily this section is invoked for the purpose of raising a charge upon property recovered by an action in a civil court; but the circumstances in the present case did not bring themselves within the common rule. A \Velsh farmer in 1895 realized his assets and went to Australia with a sum of about £800. A warrant was issued for his arrest on a charge of forgery, and bankruptcy proceedings were commenced, in the course of which a prosecution was ordered against him for alleged offences under the Debtors Act, 1869. He was arrested at Adelaide and sent back to this country, the money found upon him being detained by
the police. The criminal charges were not substantiated, but the solicitors who acted in the rosecutions, and also for the trustee in the bankruptcy generally, applied to the Adelaide police for the money which had been detained, and in due course a sum of upwards of £700 was forwarded to them. Upon this sum they obtained from the county court judge having jurisdiction in the bankruptcy a charging order under the above section for the costs incurred in procuring the arrest of the debtor and for their costs of the bankruptcy petition. But the objection which was fatal in the Divisional Court, and which has now proved fatal also in the Court of Appeal, is that there were no civil proceedings in the course of which the £700 was recovered. The criminal prosecutions, and also the bankruptcy proceedings, were, no doubt, conducive to the recovery. But the money was actually returned as the result of application made to the Adelaide police, and since civil proceedings became unnecessary the possibility of a charge being created under the section never arose. Moreover, the order in which costs are payable out of a bankrupt’s estate are regulated by rule 125 of the Bankruptcy Rules, and this was regarded by the Court of Appeal as a reason why the discretion of the court ought not to be exercised in declaring a charge under the Solicitors Act, even if this were otherwise possible.
Tnn ossn of Reg. v. Clemens and Others (reported elsewhere), heard by the Court for Crown Cases Reserved last week, will hardly rank as one of the more important decisions of that tribunal, and few will be found to criticize the conclusions of the judges. The inhabitants of Newquay, in Cornwall, claim over a certain piece of land rights of digging gravel and cutting rushes, and also rights of using it for recreation and for drying their fishing nets. This piece of land was lately enclosed, with the intention of erecting an hotel upon it, and the building contractor put up a temporary wooden office near the proposed site. The defendants, who were twenty in number, along with many other persons, entered upon the land, pulled down and removed the oflice, and then threw the materials of which it was built over the clifi into the sea. They were indicted at the succeeding quarter sessions under section 51 of the Malicious Injuries to Property Act, 1861, and in their defence it was urged that they had acted under a bomifide claim of right. The jury, however, found that, although the defendants acted under the belief that they had the right to remove the obstruction, still they did more than it was necessary to do in order to assert that right. On this finding the High Court held that the defendants were properly convicted of malicious injury to property. There can be little doubt but that this decision is in accordance both with law and with common sense. If the defendants had merely pulled down and removed the oflice, doing no further harm than was necessary to assert their alleged rights over the land, there would be an absence of mans rea, and probably they would have been entitled to acquittal. But they went much further, for, having accomplished the removal of the obstruction, they went on to utterly destroy the property by throwing it into the sea. Such an act could not have helped them to assert their rights, and was clearly malicious within the meaning of the statute under which they were charged. It is to be noticed, further, in this case that some of the claims which the defendants put forward as a defence would alone have availed them little, in any case, as they are not rights known to the law. The inhabitants of a town may have a right of using land for recreation or for drying nets, but the inhabitants at large cannot possibly have rights of prqfit a premlre over the land of an individual, as they claimed to have in this case.
relating to the grant of new licences, and sometimes listen to statements not upon oath. Last autumn the justices of the Wellingborough Division of Northamptonshire, at their annual licensing meeting, heard an application for a new licence at considerable length, witnesses giving evidence on oath and petitions being considered both in support of the application and against it. After a great deal of evidence had been heard on each side, a gentleman named Damon, who had signed one of the petitions objecting to the grant, claimed a right to make a statement. On objection being made, the justices refused to hear him unless he consented to make the statement upon oath, and to submit to cross-examination like the other witnesses. This he declined to do, and the justices subsequently granted the licence. Mr. DENTON then obtained a rule for a anti...--arz' to quash the grant of the licence, and for a manrlamus to compel the justices to rehear the application. The Divisional Court, on the rule coming up for argument last week, held that mtfarm-I was not the proper remedy in such a case. This seems to follow necessarily from the decision of the House of Lords in Iloullrr v. Justices of Kent that a licensing meeting is not a court of summary jurisdiction. The court also refused the nmndamus, and held that the justices had full discretion to take the course they did. In fact Mr. DENTON claimed the right to act as an advocate, and if justices could be compelled to hear speeches from every self-constituted advocate who chose to attend a licensing meeting, the proceedings would on some occasions ba prolonged to a most unreasonable length. It would moreover be grossly unjust to applicants if any person might make any statement he pleased without taking the oath, and without the justices having any power to restrain him.
A cusrous point as to the effect upon a bill of exchange of a payment immediately withdrawn by the payer arose in London Ban/.'z'ng Corporation v. .lTorsnm'l, before BIGIIAM, J. A bill of exchange for £2,000, due on the 28th of September, 1897, was drawn by A., accepted by B., and indorsed by C. It came into the hands of the plaintiffs as holders for value. B. was unable to meet it, and C., a few days before the due date, paid £300 off the amount and obtained an extension of time for the balance till the lst of October. On the 30th of September C. gave the plaintiffs a crossed cheque for £1,700 on his bankers, the Croydon branch of the London and County Bank, and at the same time wrote to the bank—where his balance was not suflicient to meet the cheque—advising them of the cheque, and stating that he hoped B. would provide for it. B. did not provide for it, but, on the 1st of October, when the plaintiffs sent a clerk to Croydon to present the cheque for payment, a “ banker’s payment ” was handed over the counter in exchange for the cheque. This was done under the authority of the manager; but, news coming in just then that C. had attempted to commit suicide, the “banker’s payment” was recalled and further payment of the cheque refused. The plaintiffs sued B. as acceptor, and B. set up payment by C. as a defence. From the evidence given at the trial it appeared that a “banker’s payment” given by a branch bank is usually notified to the head otfice, though it would be honoured without such notification. The case, it is clear, lies very near the line. Mr. Justice BIGHAM drew the distinction that there was payment in law, but not in fact, and he held that the plaintiffs were entitled to recover. By itself the distinction would, perhaps, not be enough; but, assuming payment, the right of suing the acceptor would have passed to C., and he, instead of asserting it, allowed the plaintiffs to keep the bill and to treat the cheque as dishonoured. Apart, then, from any niceties as to payment, either the plaintiffs or C. were entitled to recover, and virtually C. had abandoned his right to the plaintiflfs.
ONLY A limited right of appeal is given by section 120 o_f_the County Courts Act, 1888 (51 8: 52 Vict. c. 43), and the C0l1d1lil0llB thereby prescribed must be complied with, otherwise the right is forfeited. Thus there can be no appeal except upon a question of law raised and submitted to t e judge at the trial. A good example of this rule is furnished _by the recent case of Clf/ford v. Thames Ironworks and Ski;/I1u1'lrln2_q Cu. (~16 W. It. 222;
1898, 1 Q. B. 314), where it was held that the rule applies to the case of an omission by the judge in his summing up to give the jury proper and necessary instructions and directions as to the law. Under such circumstances counsel should, it seems, either interrupt the judge in the course of his summing up, or else wait till the end of the summing up, and then ask the judge to direct the jury in the way it is contended that he should have directed them. If one or other of these courses be not adopted, there can be no appeal on the ground of non-direction. This decision does not really conflict with Barber v. Burt (42 W. R. 572 ; 1894, 2 Q. B. 437) as there the point of law on which the appeal was decided did not arise until after all the evidence in the case had been given and the summing up was concluded. Moreover, there the appellant complained, not oi non-direction, but of mis-direction. On the other hand, the decision in question does certainly derive support from previous cases, and notably from Rfiorlas v. Liverpool Commercial Investment Co. (4 C‘. P. D. 425); Seymour v. Coulson (5 Q. B. D. 359); Clark-son v. lllusgrava (31 W. R. 47, 9 Q. B. D. 386); and Sm-ttlz v. Baker gSons (40 W. R. 392; 1891, A. O. 325), from which it clearly appears that the raising of the point of law at the trial is a condition precedent to any appeal from the decision of a county court.
DISTRIBUTION OF SURPLUS ASSETS IN WINDINGUP.
THE question of the proper basis upon which the surplus assets of a company are to be returned to the shareholders in a winding-up is one which causes considerable difiiculty, and the recent decision of Wmoiir, J., in Re An_glo- Continental Corporation of Western Australia (ante, p. 270; 1898, 1 Ch. 327) shews that the difficulty has not been removed by the form which is now frequently inserted in articles of association. In Ex parte Maude (L. R26 Oh. 51), where the matter was discussed, no special provision was made by the articles, and it was held upon general principles that, where the assets were insufficient to repay the whole of the capital actually paid up, the loss ought to be borne by the members in proportion to the nominal amount of their shares, whether paid up or not. In that case the shares were of the nominal value of £25, and on some shares the whole £25 had been paid up, and on others £20 only. The above principle was applied by first repaying to the former class of shareholders £5 per share, and then distributing the remaining assets among all the shareholders in proportion to the number of shares, or the nominal amount of capital, held by them. Any other rule, it was pointed out by MELLISH, L.J., would make the way in which the losses were to be borne depend upon the accident whether the assets could be immediately realized, or whether it was necessary to make a call in order to pay debts. In Ex parts Maude the assets had been realized, and it had not been necessary to make a call; but, had the £5 per share on the £20 paid shares been called up for the pur oses of the liquidation, it is clear that the ultimate assets would have been divisible among all the shares pro rala; that is to say, the losses would be borne by the shareholders in proportion to their subscribed capital. In the opinion of MELLISII, L.J., the accident of the assets being immediately realizable, or of the creditors not pressing for payment, so that a call was not necessary before the assets were divided, ought not to alter the principle of the division.
In Er parts Jlauda the assets were insuflicient to repay the paid-up capital, and the question related to the apportionment of losses amongst the members. In Birch v. Cropper (38 W. R. 401, 14 App. Gas. 525), the case of the Bridgewater Navigation Co., the assets were sutficient for this purpose, and it was held that the same princi le applied to the apportionment of profits -—namely, the shareholders were entitled to participate in the proportion of the nominal amounts of their shares, and not in the proportion of the amounts actually paid up. The considerations which in Re Maude made this the principle governing the distribution of losses were considered to be equally applicable to the distribution of profits. “Each member,” said Lord H:snsc_i:mi.i., “who has subscribed for a £10 share owns the same share in the com any, whether it be or be not paid up; and if he is so regardeftor the purpose of meeting losses, 1 cannot see
that it is equitable that he should be otherwise dealt_with when we are considering to what share of the profit he is entitled. When the whole of the capital has been returned both classes of shareholders are on the same footing, equally members and holding equal shares in the company ; and it appears to me that they ought to be considered as equally entitled to its property.”
In the above cases the rights of the shareholders had to be adjusted in the absence of any express clause regulating them in the articles of association. In Ea: parts Lowenfelrl (70 L. T. 3) there was an article which provided both for sufficiency and insutficiency of assets. If the surplus assets were more than sufiicient to repay the whole of the paid-up capital, the excess was to be distributed among the members in proportion to the amount of the capital paid up on the shares held by_ them respectively at the commencement of the winding-up ; if the surplus was insutficient, it was to be applied first in repaying to the preference shareholders pro rata the amount of capital paid up on the preference shares held by them respectively at the commencement of the winding-up, and any balance was to be distributed among the ordinary shareholders. Preference shares had been issued by the company, some as fully-paid, and others in respect of which only part of the capital had been called up. In the winding-up there was not sufficient to repay the whole of the paid-up capital, and the question arose whether, before acting upon the above provision, a call must be made in order to equalize the amounts paid up on the preference shares; in other words, whether the “ surplus assets ” which were distributable under the clause included the proceeds of such a call. The efiect of this construction would be to leave the shareholders to the principle of Ra Mazzde just as it no special clause had been introduced—-that is, they would bear the loss inter so in proportion to the nominal amounts of their shares. This construction, it was held by the Court of Appeal, was correct. The difliculty arose upon the words “amount of capital paid up on the shares held at the commencement of the winding-up.” Prfmd facts, it was admitted, “ surplus assets ” included unpaid capital, but it had been held by VAUGHAN WILHAMS, J., that the above words were to be read as “ amount of capital paid up at the commencement of the winding-up,” and that consequently the special clause cut down the prfmd fac-is meaning of surplus assets, and forbade the making of any call for the purpose of equalizing the position of the preference shareholders inter se. The Court of Appeal held, however, that the date for ascertaining the amount of capital paid up was not the date of the windingup, but after the calls had been made and got in in the windingup. Thus, as already stated, the result was to leave the preference shareholders to bear the losses in proportion to the nominal value of the shares held by them.
In the recent case of Re Anglo- Continental Corporation of If/astarn Australia (supra) the article dealing with the distribution of assets in a winding-up was drawn with the apparent intention of excluding the principle of Ra Maude and Birch v, Cropper, and of making both profits and losses apportionable according to the amounts paid up on the shares, and not according to their nominal value. It was provided that if the surplus assets should be more than sufficient to repay the whole of the paid-up capital the excess should be distributed among the members in proportion to the capital paid or which ought to have been paid on the shares held by them respectively at the commencement of the winding-up, other than amounts paid in advance of calls. If the surplus assets were insufiicient, they were to be distributed so that, as nearly as might be, the losses should be borne by the members in the proportion just stated. In the winding up of the company the surplus assets were insufiioient to repay the paid-up capital, and the position of the shares was as follows: 100,000 £1 shares had been issued, on which only 5s. had been paid up, and 25,000 shares of the same nominal amount had been issued and had been fully paid up in cash. After providing for the liabilities of the company there remained in the hands of the liquidator assets sufficient to return 15s. per share to the holders of the 25,000 shares, and this the liquidator proposed to do until objection was raised on behalf of the holders of the 100,000 shares and the matter referred to the court.
According to the view taken by WRIGHT, J., the clause in the present case is as ineffectual as that in Ea: parts Lowenflld
(supra) to alter the rule adopted, in the absence of express provision, in the earlier cases. His judgment does not leave losses to be borne in proportion to the paid-up capital, but first calls up sufficient capital on the 100,000 shares to put all the shares on the same evel, and lets the ultimate loss fall upon the shareholders 1n_proportion to the number of shares held by them. “There being, says the learned ]udge, “a deficit on the whole adventure, there still remains an equity to be satisfied in order to_ equalize the loss, and the uncalled capital ought, on general principles, to be called up or treated as called up so far as is necessary for that purpose, unless the contract has otherwise provided.” But t e constrpction placed”by the Co_urt of A_ppeal in Ex parte_Loz/zenfeld on _capital paid forbade, in his view, a construction of the article opposed to this result. “There is not in truth a surplus at all, but a mitigation of loss. The loss and the mitigation of it are, I think, intended to be distributed equally, but subject to equalization of the capital account, and not irrespectively of such equalization; anda call, actual or m_account, is necessary for that equalization, Xlhich 1: 81: esseiatsizall part of is iipihllliiitg-ulp, unlpsh) eirclilidgdd by econ rac ; an e amoun o a ca mus e inc u e in the words ‘ capital paid, or which ought to have been paid.’ ”
If the matter had been worked out as in E1; parts Maude there would have been, as the liquidator intended, a return in the first instance of 15s. a share on the 25,000 shares, and the balance would have gone rateably among the whole 125,000 shares. Thus each shareholder would in the result lose exactly the same sum on each share, or the losses would be proportionate to the nominal capital held by each. Mr. Justice WRIGHT arrived at the same result in a different manner. He held that a call, actual or in account, must first be made on the 100,000 shares sutlicient to provide a fund which by repaying part of the 25,000 shares would equalize the capital account. This, he said, could be done by a call of 3s. per share on the 100,000 shares and a repayment of 12s. per share on the 25,000 shares, the shares then all standing at 8s. paid. The balance was then to be distributed rateably among all the 125,000 shares, leaving the loss as before to be borne in proportion to the nominal capital.
It is not easy to see how this result accords with the obvious intention of the article in question, which is to secure that the losses shall not be borne in this manner, but in the proportion of the capital actually paid up at the commencement of the winding-up. Thus, in the present case the £25,000 paid on the 100,000 shares and the £25,000 paid on the 25,000 shares would bear the loss equally, and, assuming the total loss was £10,000, each of the larger class of shareholders would lose ls. a share, and each of the smaller class would lose 4s. a share. On Mr. Justice WnIonT’s construction the loss all round is about ls. 6d. a share. Which system is the fairer in the abstract it is not easy to say. One object of the present clause appears to be to avoid the making of a call on cash shares in order to provide a fund in the liquidation for a repayment to the holders of vendors’ shares (see Palmer’s Company Precedents, 6th ed. I., p. 381), and this is frequently desirable; but it that object is to be attained the clause will require reconsideration.
Archbold’s Practice of the Court of Quarter Sessions, and its Civil, Criminal, and Appellate Jurisdiction; with Tables of Allowances to Witnesses, Costs of Appeal, Procedure on Appeals, and of the Principal Indictable Offences Triable at Quarter Sessions. Fifth Edition, thoroughly revised and in many parts re-written. By Sir G. Srmnsror: BAKER, Bart., Barrister-at-Law. Shaw & Sons; Butterworth & Co.
The Student's Guide to Procedure in the Queen's Bench Division of the High Court and to the Law of Evidence. Second Edition. By J OHN INDERMAUR, Solicitor, and Gnannns Tnwsrras, Solicitor. George Barber.
Sir,—I have been endeavouring to ascertain the position of leases hold property under the compulsory clauses of the Land Transfer Act, 1897.
On referring to section 20 I find that registration of title to land is to be compulsory on sale and thereupon “ a person shall not under any conveyance on sale executed on or after . . . acquire the legal estate in any freehold land . . . unless or until he is registered as proprietor of the land.”
I have carefully studied all the sections of the Act relating to compulsory registration, but can find no reference whatever to leasehold property. _ _ _ _
On turmng, however, to part 4 of the Act, containing miscellaneous provisions, notice that by section 22, sub-section 6, it is enacted that provision may be made by general rules for (inter alia) the following purposes: “ (g) For applying to the grant of leases and dealings with leasehold land the provisions of this Act with respect to compulsory registration.”
In other words, the Act seems first to omit leasehold property from the operation of the compulsory registration clauses, and then to give the Rule Committee constituted by the Act power to make rules for the purpose of applying the compulsory registration clauses to leasehold property.
If, as I believe to be the case, my premisses are correctly stated, I venture, with all due humility, to suggest that any rules which may hereafter be framed with the object of applying the compulsory powers of the Act to leasehold property will be ultra vires.
London, March 8. E. S.
[See observations under head of “ Current Topics."—ED. S
Sir,--An interesting and very important point afi'ecting the profession arises respecting the effect of the decision in Smith v. Edwards (37 W. R. 112) as to the proper form of order on an application under order 14 in an action brought on a solicitor’s bill of costs.
Supposing the bill of costs has been delivered for, say three years, and has never been questioned, has the client, by not pursuing the privilege given to him by 6 8: 7 Vict. c. 73, s. 37, lost the right to set up the defence, in an action brought to recover the amount of the bill, that such amount is unfair and unreasonable ?
It seems to us to be clear that the order made in Smith v. Edwards was made only upon the authority of the Solicitors Act, 1843, which prohibits a taxation on the application of a client under that Act after a year from the delivery of the bill ; and, so far as we know, or have been able to find, the point above set forth has never been decided.
We should be very pleased to know from any of your correspondents whether a similar point has ever arisen in their experience, and, if so, whether it has ever been decided in an authoritative manner. Cooran & BAKE.
6 and 7 Portman-street, Portman-square, W., March 9.
the net proceeds among the residuary legatees, but son C. contends that a proportionate part of the estate duty should be borne by the legacies of £100 in exoneration to that extent of the rest of the testator’s estate. We cannot assent to this, and we should be glad to hear the view of any of your readers on the question.
It should be added that this is not a case of “settlement estate duty.” If it were, no doubt section 19 of the Finance Act, 1896, would be applicable. But why there should be a difl"erence in the incidence of the duty in the two cases seems somewhat anomalous. We should be glad to be enlightened. L. & S.
Charles Clarke was a person of unsound mind not so found by inquisition. A judgment creditor of his issued a _/i. fri. on the 8th of January, 1898, under which the judgment debtor’s goods were seized on the 17th of January, 1898. After tne judgment had been obt-iined—viz., on the 31st of December, 1897, a summons in lunacy was taken out in order to obtain the appointment of a receiver under section 116 of the Lunacy Act, 1890. Notice of the pendency of this summons was given to the judgment creditor before he issued the ji. fa. After the seizure under the ji. fa.-—viz., on the 18th of January, 1898 -an interim receiver was appointed and notice was given to the sheriff to withdraw, which, however, the execution creditor told him not to do. On the 2l=t of January, 1898, an order appointing a receiver was made, and notice of this order was given to the sheriff, and he was again asked to withdraw, but the execution creditor directed him not to do so, and he remained in possession. On the 28th of January, 1898, the sheriif issued a summons in lunacy asking for directions how to act, and this summons was adjourned into court and came on to be heard on the 16th of February, 1898. After hearing counsel, the court directed the sheriif to sell and pay the money, the_proce_eds of_thc sale, into court, without prejudice to any question which might arise. It was obviously for the benefit of all parties to get rid of the sheriff. Formal judgment was reserved.
March 7.—The written judgment of the court was delivered by
LINDLBY, M.R., who stated the facts as above set out, and continued: On that occasion (the 16th of February, 1898), it being obviously for the benefit of everyone that the sheriff should be got rid of, and no one objecting, the court ordered the shcrifi to sell the goods and to pay the proceeds, less his expenses, into court in the matter of the lunacy. But this order was made without prejudice to any question between the lunatic or the receiver in lunacy on the one hand, and the execution creditor on the other, and the court took time to consider their respective rights and the right of the Crown as the protector of lumiiics and their property. These rights have now to be determined. Unless the right of the Crown and the jurisdiction of the judge in lunacy can be regarded as arising when the summons was taken out—v'iz., on the 31st of December 1897-10 as to place the lunatic and his property under the protection oi the Crown on and after that date, it seems plain that the proceeds of sale ought to be_paid to the execution creditor, and not to the receiver in lunacy. It is very true that the property in goods seized under a ji. fa. remains in the execution debtor until sale (Giles v. Grover, 1 Cl. & Fin. 72). But itis no loss true that after seizure and before sale the execution creditor is as regards those goods in the position of a secured creditor: see Er parts Williams (20 W. B. 430, L. R. 7 Ch. 314), and Slater v. Finder (20 W. R. 44_l, L. R. 7 Ex. 95). He had a legal right as against the execution debtor—i.e., the owner oi the goods—to have the goods sold and to be paid out of the proceeds of tho sale. Further, in this case it cannot be said that the goods were ever in the possession of the receiver. Even if an order appointing a receiver related back, which it never docs, the receiver has never in fact been in possession of the goods. This circumstance distinguishes this case from Re Winkle (42 \V. R. 513; 1894 2 Ch. 519) where tho receiver had possession and the sheriff had not‘, ho having gone out of possession under an order of a judge at chambers. The judgment of the court proceeded entirely on this ground, and Re /Vm/fie (ubi supra) is no authority for saying that the Court in Lunacy can deprive execution creditors of their rights over property not under the control of the court when seized under legal process. The cases of Re Plriiderlcitb (42 W. lt. 224; 1893, 3 Ch. 332), and Ra Famliam (/14 VV, R, 465; 1395. 2 Ch- 799; and 1396, 1 Uh. 836), shew that whilst on the one hand the court will not allow property in its custody and belonging to a lunatic to be applied otherwise than for his benefit, and will not pay his creditors out of it without first providing for him, yet, on the other hand the Court in Lunacy has no jurisdiction to interfere with the rights oi creditors to seize and sell by legal process property of the lunatic which at the iime of seizure is not in the custody of the court. It was, however, suggested that as soon as the summons in lunacy was issued the jllfisdig. tion of the Crown exercisable by the judge or Court in Lunacy became exercisable over the lunatic’s property, and that his property ought to be regarded as under the protection of the Crown from that time. In a
sense this is true, for as soon as the summons was issued the 'udge in lunacy had jurisdiction to make orders for the protection of the lunatic’s
property; but until some order is made shewing that the Crown has actually taken the property of the lunatic under its protection it has never yet been held to be withdrawn from legal process by a credito_r_of
the lunatic. The Court in Lunacy has gone far even before any inquisitioii to protect an alleged lunatic and his property. It has punished persons entrapping an alleged lunatic into a marriage (see Smart v. Taylor, 9 Mod. Rep. 98), it has restrained an allcged lunatic from executing instrurncnts disposing of his property (Ridgeway v. Darwin, 8 Ves. 65), and _it has in quite recent times protected the property of an allegcd_luiiatic against seizure by his creditors by appointing an inlerim receiver (Re Rmnlain, 37 Ch. D. 609, 36 W. B. Dig. 106). The statute De Prrcrogativa. Regis, which has always been regarded as defining the power of the Crown in lunacy matters, has been very widely coustrued—a g., it has been held to extend to a lunatic’s personal property, although land and tenements alone are mentioned. But it is quite clear from Lord Eldon’s observations in Er parts Hastings (14 Ves. 182) and Ex parts Hall (Jac. 160) that the Court in Lunacy could not protect a lunatic from arrest under a ca. .m., and could not prevent a judgment creditor from issuing execution
against his property if the creditor could reach it by ordinary writs of execution without interfering with the possession of an oiilcer of the Court in Lunacy, and his doctrine is as well settled now as it was then, as is shewn by Brockwell v. Bullock (37 \V. R. 455, 22 Q. B. D. 567) and P4 Farnham (ubi supra). If, indeed, the creditor has douo anything to give
the Court in Lunacy jurisdiction over him it is another matter (sec Er parle 1V¢'aver, 2 M. & Cr. 441, and other cases of that kind noticed by Fry, L.J., in Brockwell v. Bullock, ubi supra). We have looked to see
whether the fact that the judge in lunacy can now sell the lunatic‘s real property for the payment of his debts enables the court to compel creditors to come to that court for payment, and to restrain them from pursuing their legal remedies against property not actually under the protection of someone appointed to take care of it. The power to sell the real property of a lunatic for payment of his debts was first given in 1830 by ll Geo. 4, and 1 \Vill. 4, c. 65
(see sections 28 and 30), and this power has been continued under later statutes ever since. But it has always been held, both before and since 1830, that the Court in Lunacy cannot compel a creditor to come in and prove his debt in lunacy by restraining him from issuing execution if
he can do so without interfering with the oificers of the court. Broakwcll v. Bullock (ubi supra) and the cases cited in it shew this to be the law now,
as it always was. \Ve can find no trace of the exercise by the Court in Lunacy of any such jurisdiction as we are referring to. \Ve find a long
course of decisions inconsistent with the possession of any such jurisdic
tion; aud we are not prepared now for the first time to assert it. It would,
we think, be wrong to creditors to do so, and not necessary for the protection of infants or lunatics, for an order fora receiver or an injunction can in an
urgent case be obtained very summarily, and such an order aifords all the
protection which is really necessary. It was contended that under section
117 of the Lunacy Act the court could sell the goods seized, they being the property of the lunatic. But the court could only sell the lunatic's interest in those goods; it could only sell them subject to the security of the execution creditor; and this would not benefit the lunatic in the present case. No doubt the court could have directed the receiver to
redeem the execution creditor’s security by paying the judgment debt and
the sheriff's charges, and then to sell the goods; but the court was not askedio do this, nor did it appear that the receiver had money in her hands which she could have applied for such a purpose. As soon, there
fore, as the moncy is paid into court it ought to be paid out to the execu
tion creditor if the amount does not exceed his debt and costs. An order to that efiect will be made by the master. The execution creditor is also entitled sooner or lat/or to be paid the unpaid balance oi his judgment debt and his costs of those proceedings out of the lunatic‘s property applicable to such payment; but the creditor must apply for such payment to the master, who will give the receiver proper directions on the subject. The receiver must also apply to the master for payment of her costs.—Courvssr., H. F. Manisty; S. 0. Burknuulsr; Edward Ford. Somerrons, Ounlhjie d~ Davenport; Ccrtliew 5' W healer ,' Fielder Q Sumner, for William Jories, Cardiif.
This was an appeal from a decision of Kekewich, J ., who, upon a vendor and purchaser summons taken out by the purchaser, had decided that the vendor was not entitled under the conditions of sale to rcsciud the contract, and had also declared that the vendor had not shown a title to the property he had contracted to sell. One of the conditions of sale empowered the vendor to rescind if the purchaser should insist upon any requisition or objection which the vendor was unable or unwil ing to comply with. The purchaser required the vendor to get in a small interest on the property which was outstanding in the oflicial receiver of one William Baker. The vendor, finding it diflicult or impossible to do this, gave the purchaser notice to rescind the contract. The purchaser did not waive her requisition, but contended that the condition under