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informations, and must therefore be commenced within six the claimant at the time of the seizure. This decision does not months from the time when the costs and expenses were in- seem to call for any special comment, as it depends entirely upon curred.
the construction of section 156 of the County Courts Act, 1888. One case, affecting county court officers, must now be men- Suffice it, therefore, to state that it would seem to be a necessary tioned-namely, Re Broston, Ec parte Pruddah (45 W. R. 576; implication, from the provisions thereia contained, that the pur1897, 2 Q. B. 429). It was there held that, wbero a high bailiff chaser to whom goods are sold by the bailiff is to be entitled to seizes goods on any premises under a warrant of execution, and the goods sold in pursuance of that section. then seizes further goods on the same premises under a claim made by the landlord for distress, he is entitled to a separate set of fees in respect of each seizure. This decision seems to be clearly warranted by tho language of section 160 of the County
REVIEWS. Courts Act, 1888 (51 & 52. Vict. c. 43), which, in effect, treats
BOOKS RECEIVED. the execution and the distress as different proceedings, and gives fees to the high bailiff in respect of each transaction
A Selection of Leading Cases in Equity. With Notes. By
Seventh As regards defences to county court actions, it is prescribed by FREDERICK THOMAS White and OWEN DAVIES TUDOR. ord, 10, rr. 10, 180, of the County Court Rules, 1889, that a W. F. PHILLPOTTS, M.A., and C. R. SILLEM and R. B. PHILLPOTTS,
Edition. By THOMAS Snow, M.A., Barrister-at-Law, assisted by defendant who intends to rely upon any “statutory defence' B.A., Barristers-at-Law. Two Volumes. Sweet & Maxwell must give notice thereof boforo trial pursuant to the above (Limited). Price £3 15s. rules. It has, accordingly, now been held, in Conroy v. Peacock (45 W. R. 502; 1897, 2 Q. B. 6), that in an action under the tory Treatise, intended for the use of Students and the Profession.
A Manual of the Principles of Equity. A Concise and ExplanaEmployers' Liability Act, 1880 (43 & 44 Vict. c. 44), the defend- By John INDERMAUR, Solicitor. Fourth Edition. Geo. Barber. ant cannot rely upon the defence that the notice of injury
Sweet & Maxwell's Diary for Lawyers for 1898. Edited ly required by section 4 of that Act has not been given unless he FRANCIS A. STRINGER, of the Central Office, Royal Courts of Justice, has given notice under the above mentioned rules that he and J. JOHNSTON, of the Central Office. Sweet & Maxwell (Limited). intends to rely upon it as a statutory defence.
Notes on Perusing Titles, containing Observations on the Points One case affecting the mode of trial of a county court admiralty most frequently arising on a Perusal of Titles to Real and Leasehold action may here conveniently bo mentioned. Wo refer to the Property. With an Epitome of the Notes, arranged by way of ReTheodora (1897, P. 279), where it was held that, in an action in minders. By LEWIS E. EMMET, Solicitor. Third Edition, with an rem brought to recover freight in the county court under the Appendix on the Appointment of a Real Representative under the Admiralty Jurisdiction Acts, 1868 and 1869, å defendant is not Land Transfer Act, 1897. Jordan & Sons (Limited). entitled to trial by a jury under section 101 of the County The Compulsory Summons for Directions. A Practical Treatise on Courts Act, 1888 (51 & 52 Vict. c. 43). Having regard to the the New Rules of the Supreme Court as to Directions. By FRANCIS evident intention of the Legislature, as indicated by the terms A. STRINGER, of the Central Ofice. Sweet & Maxwell (Limited). of the County Court Admiralty Jurisdiction Acts, 1868 and
The Student's Guide to the Principles of the Common Law. By 1869, that admiralty actions in the county court should be tried John INDERMAUR, Solicitor. Fourth Edition. Geo. Barber. 5s. in the same way as admiralty actions in the High Court, it is scarcely conceivable that Parliament should have intended, by the use of such general language as is contained in section 101 of the County Courts Act, 1888, to effect a complete change in
CORRESPONDENCE. this respect. We therefore venture to think that, whatever the
THE DISADVANTAGES OF PARCHMENT. hardship occasioned to suitors may be, the case under considera
[To the Editor of the Solicitors' Journal.] tion was rightly decided. On the subject of county court appeals, one case only appears put me in mind of an accident that happened to the deeds and
Sir,- Reading Messrs. X. & Y.'s letter in your journal last week, thave been decided during the past legal year-namely, documents of a lady client of mine some years ago. Pritchett v. Poolo (W. R. Dig., vol. 45, p. 42), where it was held She placed her iron deed box (not a safe) in the cellar of her house that if it appears to the High Court that there is reasonable at Surbiton. One day a great quantity of water flowed into the ground for an appeal from a county court, the High Court will basement of the house from some spring or other source; the lady not order the appellant to give security for the costs of the did not remove her deed-box, which was eventually covered with appeal merely on the ground that he has no visible means of water, and when it subsided my client opened the deed-box and paying the respondent's costs should the appeal fail. It had found that her parchment deeds were shrivelled and mostly illegible, previously been stated, we may mention, by CAVE and SMITHY,
whereas the paper documents were only stained, but perfectly
legible. JJ., in Ex parte Apothecaries' Society (38 W. R. 478) that the
So in this case also parchment had its disadvantages. Divisional Court will not, as a rule, require security for the 42, Theobald's-road, Gray's-inn, Nov. 6.
F. TRUEFITT. costs of an appeal from a county court where leave to appeal has been unconditionally given by the county court judge. One case on that most important matter, Costs, must now be
[To the Editor of the Solicitors' Journal.] noticed--that is to say, Pain v. Bowden (45 W. R. 48), which Sir,- In connection with the letter of Messrs. X. & Y. in your decides that, in an administration action in the county court the issue of the 30th ult., there is another question. A great deal of the costs of the administration are within the discretion of the paper now used is made of old papers, instead, as formerly, of registrar as discretionary “fees or allowances " under ord. 50a, rags. r. 20, of the County Court Rules, 1889, and that, in disallowing What is the effect of the change on the durability of the paper ?
A. B. certain costs, the registrar may take into consideration the fact Old letters and drafts may be wanted at any time. that the estate is insolvent, in which case only such costs as are strictly necessary for the protection of the estate should be allowed.
NEW RULES. With regard to that final stage in a county court action
[To the Editor of the Solicitors' Journal.) namely, execution—as reference has already been made, under Sir,-Having regard to the ridiculous (and fortunately abortive) another heading, to Re Broster, Ex parte Pruddah (supra), we County Court Rules propounded last year, and to the confusion need now, in conclusion, only refer to the case of Goodlock. which has resulted from the recent alterations in order 30, I venture, Cousins (45 W. R. 369; 1897, 1 Q. B. 558). It was there held with all deference, to suggest three points which might, I think, that where, a claim having been made to goods taken in execu- viz. :
well be borne in mind before any further changes are introducedtion by the bailiff of a county court, the claimant does not make 1. An acquaintance with the existing practice. the deposit or give the security required by section 156 of the 2. An inquiry whether the proposed innovation is workable. Cunty Courts Act, 1888, and the bailiff sells the goods under 3. A consideration whether the proposed new iule is intelligible. the authority given by that section, the sale gives the purchaser No doubt during the last few days many other solicitors have a good title to the goods, although they were the property of shared my experience, which may thus be described :
Attending to sign judgment in default of defence, when I was required to issue a summons under order 30.
CASES OF THE WEEK.
Court of Appeal. the other masters as to the construction of the new rules.
STERN V. TEGNER. No 2, 27th and 30th Oct. Attending adjourned summons, when the master stated that a summons was uunecessary and that judgment could be signed with BILL OF SALE-EXECUTION CREDITOR-SALE SHERIFF BY ORDER out leave. No order as to costs.
of Court-BANKRUPTCY Act, 1890 (53 & 54 Vict. c. 71), s. 11-R. S. C., I have put the items in the form of a bill of costs, but can I charge
ORD, 57, R. 12. my client with it ? and if so, what will he say?
PRACTICE. Appeal from an order of Ridley, J. (sitting as Vacation Judge). On Nov. 9.
the ilth of August, 1897, Mr. Tegner executed a bill of sale in favour of the appellant, Mr. Smith, to secure £300 at 30 per cent. interest, repay
able on the ilth of November next. In September the landlord disTHE LAND TKANSFER ACT, 1897.
trained on the grantor of the bill of sale for rent, and on the 30th of [To the Editor of the Solicitors' Journal.]
September the sheriff seized the goods comprised in the bill of sale at the
instance of Stern, who had obtained a judgment against Tegner. On the Sir, – That grandmotherly legislation is pushed to the extreme by 1st of October, Smith, the claimant, sent in his claim under the bill of the establishment of a compulsory registration of land transfer must sale, and shortly afterwards paid off the landlord. On the 7th of October be obvious. Land-owners, of all people in the world, know what is the sheriff issued an interpleader summons, and on the same day a good for them, and do not want compulsion to accept benefits, if receiving order was made against the debtor.' On the 15th of October an real benefits are offered. Compulsory registration of land transfer adjudication in bankruptcy was made, and on the same day the Master stands as a self-condemned folly.
in Chambers directed à sale on certain terms which were subsequently Happily, however, the Act just passed has an inherent feebleness varied by the order of Ridley, J. The bill of sale holder, Smith, appealed which furnishes an opportunity of frustrating its foolishness. It is on the ground that the order for sale was made without'jurisdiction, and only, in the first instance, to be applied to one county, and if any sale by the sheriff when the security was doubtful.
that there was no right to interfere with the legal mortgagee and order a particular county be fixed on by the Government for the experiment, the council of the county may effectually object thereto.
The Court (LINDLEY, M.R., and Chitty, L.J.) allowed the appeal. All this eccentric legislation is, we are now told, to be followed by Oct. 30.-LINDLEY, M.R., in the course of his judgment read section 11 a Government order selecting the County of London as the corpus in execution, and before the sale thereof, or the completion of the
“Where any goods of a debtor are taken vile for this experiment. Hereon Mr. Rubenstein's letter to the Estates Gazette, which you re-published last week, is very much in execution by the receipt or recovery of the full amount of the levy,
ade against point. Every word be says on this matter is worthy of the best notice is served on the sheriff that a receiving order has been
the debtor, the sheriff shall, on request, deliver the goods and any money attention, and, as I venture to think, of entire acceptation. More
seized or received in part satisfaction of the execution to the official may easily be added in condemnation of the mad idea of experi- receiver, but the costs of the execution shall be a first charge on the goods mentalizing on London.
or money so delivered, and the official receiver or trustee may sell the But the point I wish to emphasize is a practical one. The elections goods, or an adequate part thereof, for the purposo of satisfying the for the London County Council come on next spring. Now is the charge,” and order 57, r. 12: “When goods or chattels have been seized time for the land-owners of London to have a voice. My view is in execution by a sheriff or other officer charged with the execution of that the jangle of party cries and elections on “party lines” should process of the High Court, and any claimant alleges that he is entitled, (for this time, at least) be unheeded. Let the legal profession-each under bill of sale or otherwise, to the goods or chattels by way of security one in his own sphere of influence-make the rejection of the for debt, the court or a judge may order the sale of the whole or a part proposed order a test question to every candidate at the ensuing thereof, and direct the application of the proceeds of the sale in such London County Council election.
manner and upon such terms as may be just.' His lordship then Permit me to add one example : A legal friend of mine, who is a
continued : Butord. 57, r. 12, was not intended to deprive secured creditors
of the benefit of their security, and when this will, or very likely will, Ruling Councillor of the Primrose League in London, received the be the case the court ought not to direct the sale but ought to direct the other day an application from the agent of the Moderate candidates sheriff to withdraw. There are three cases which arise in practice. First for the assistance of his Habitation in promoting the election of those of all the case where the security is ample and where the bill of sale candidates at the County Council elections next spring. My friend's holder or the execution creditor tries to assert his rights; he defeats the answer was that such help would be rendered conditionally on the other creditors. That is the common case which section 13 of the Common candidates pledging themselves, if elected, to use every means in Law Procedure Act, 1860, was passed to rectify: Te cannot stand upon their power to prevent the County of London from being the area his rights when it is plain that he is defeating the other creditors, which selected for experiment of the Land Transfer Act, 1897.
of course involves the assumption that after paying off the other creditors My suggestion is that one and all, without distinction of party-for there will be something left. That is an easy case. Now, the next case this is not a party question at all-should act likewise.
there is nothing for the execution creditor it follows that there will be a Nov. 8.
deficiency, and that even if there were a sale there would not be a surplus. Then it follows, as a matter of course, that the only proper course is to direct the sheriff to withdraw. What has the execution creditor got to
do with it if he cannot possibly get anything out of it? That is an easy NEW ORDERS, &c.
The third case is somewhat more doubtful and more difficult. It THE RAILWAY AND CANAL COMMISSION.
is when there is a doubt whether the security is sufficient to pay off the
secured creditor or not. The proper course in such a case is for the court RULES PUBLICATION ACT, 1893.
to say: “Unless you, the execution creditor, will guarantee the secured Rule of the Court of the Railway and Canal Commission.
creditor against loss by eale, we will not order the sale.” Here the
execution creditor and the trustee have declined to redeem, aud declined The following Drast Rule is published pursuant to the above men to give any guarantee at all against any loss. That has induced me to tioned Act:
look more carefully than I did in court into the evidence, and upon the The Railway and Canal Commission Rules, 1889, shall, with the evidence l am perfectly satiefied that if these goods are sold by the sheriff necessary modifications, apply to all applications to the Railway and it is extremely doubtful whether there will be enough to pay the bill of Canal Commissioners under the Metropolis Water Act, 1897.
sale holder. As to there being a surplus for the execution creditor, of Copies of the above Draft Rule may be obtained at the office of the might be nothing; it might be a shilling or sixpence, or a few shillings,
course I cannot say what the result of a sale might be, but the surplus Railway and Canal Commission, Royal Courts of Justice.
Well, under those circumstances how can it be just to enforce a sale and
deprive him of bis security? That is to abuse the rule, not to put it into TRANSFER OF ACTIONS.
operation in a case to meet which it was passed. It is said that this view ORDER OF COURT.
is opposed to a decision of this court in Forster v. Clowser (1897, 2 Q. B. 362 ;
45 W. R. Dig. 123). I do not think so at all. It appears to me Monday, the 8th day of November, 1897. perfectly consistent with it. What the Court of Appeal did there was !, Hardinge Stanley, Lord Halsbury, Lord High Chancellor of Great this: They were satisfied that there was enough to pay off the bill of sale Britain, do hereby Order that the Actions mentioned in the Schedule holder that which they considered was the sum properly payable to bim. hereto shall be transferred to the Honourable Mr. Justice Wright. I think the court went a long way in anticipating the date of payment: SCHEDULE.
That is nothing. I am satisfied they never would have deprived him of Mr. Justice Stirling (1897-C.- No. 3,226).
bis security. They were satisfied, in other words, that upon the sale and
the payment to him in full of what they thought he was entitled to, there In re Thc Consort Deep Level Gold Mines Limited. The Mines Acqnisition and Development Company Limited v The Consort different case.
would be a surplus left for the execution creditor. That is quite a
Here I am satisfied that it is extremely doubtful whether Deep Level Gold Mines Limited.
there will be a shilling for the execution creditor. The conclusion which Mr. Justice Stirling (1897-N.-No. 1,341).
I have arrived at is that if there is an enforced sale by the sheriff, of the In re Noble and Rock Limited.
nature we are all acquainted with, there will not be twenty shillings in James Bray v Noble and Rock Limited.
HALSBURY, C. the pound for the secured creditor. Under those circumstances it appears
to me this appeal ought to succeed. The proper order will be that the
MACLURCAN V. MACLURCAN. No. 2. 3rd Nov. sheriff is to withdraw, and there must be no action against him. The execution creditor must pay him his costs and charges. The execution
DIVORCE-ALIMONY-ALIENATION --Divorce MATRIMONIAL Causes creditor and the trustee in bankruptcy must pay the appellant here and
Act, 1857 (20 & 21 Vict. c. 85), s. 32—AMENDMENT Act, 1866 (29 & 30 below his costs and must bear their own costs themselves; but the order Vict. c. 32), s. 1. is not to prejudice the right of the trustee to pay his costs out of the Appeal of the respondent from an order of Barnes, J. The wife bankruptcy estate. We think it would be right, if we could do so, to give presented a petition for a divorce from her husband, and a decree nisi was the execution creditor a second charge on these goods so that he may be granted. After the decree had been made absolute an order was made on reimbursed the expenses to which he will have to be put, because he has the respondent that he should secure by deed to his former wife an acted with the trustee and under his direction. I an assuming there is a annuity of £90 out of his interest in some property to which he was surplus. I do not know that we have any jurisdiction to do that, but it entitled under two wills, by way of permanent alimony; the terms of the would obviously be right if some arrangement could be made between the deed, in care the parties differed, to be settled by one of the conveyancing trustee and the execution creditor to reimburse the execution creditor counsel to the Chancery Division. The former wife, contemplating a the costs which he will have to pay.
second marriage, agreed to accept a lump sum of £100 in lieu of the Chitty, L.J., gave judgment to the same effect. Appeal allowed. annuity. This having been paid, she afterwards applied to Barnes, J., -COUNSEL, Herbert Reed, Q.C., and Muir Mackenzie; 4. 7. Carrington ; J. for an order that the alimony should be again paid to her. Barnes, J., P. Earle; Rose-Innes. SOLICITORS, W. Vant, jun.; Barber of Son; Petch being of opinion that permanent alimony was inalienable, made the f Smurthwaite; J. & T. Burchell.
order. The respondent appealed.
The Court (LINDLEY, M.R., and CHITTY, L.J.) allowed the appeal. [Reported by W. SHALLCROSS GODDARD, Barrister-at-Law.]
LINDLEY, M.R., said that the important part of the order was that the
court might authorize the annuity to be secured ; it was a charge on POLLOCK v. GARLE. No. '2. 3rd Nov.
property and became a security. The moment the order was made the BANKERS' Books EVIDENCE Act, 1879 (42 Vict. c. 11), ss. 3-7-INSPECTION wife had a charge which could be enforced at once. Could she assign or BEFORE TRIAL.
release what she had got? The case of Harrison v. Harrison (36 W. R.
748, L. R. 13 Pro. D. 180) shewed that she could, and Watkins v. Watkins Appeal from an order of Kekewich, J. The action was brought for the (44'W. R. 677; 1896, P. 222) shewed the distinction between sums of rescission of a contract between the plaintiff and defendant for the pur- money paid under the Act of 1857 and that of 1866. The court could chase of some shares in the Gresham Gold Exploring Syndicate (Limited). not take the view that it was not competent for the parties to deprive the The plaintiff alleged that the defendant, who was at that time a director court of its control over the order. If that was the view of Barnes, J., it of the said company, on or about the 2nd of December, 1895, inade cer
was not sound. Why was the lady not bound by the deed of 1895, by tain false representations to him in respect of the position of the company, which she released her rights? Their lordships had thought there might by which he was induced to buy the said shares. The particular repre- be some equitable ground for setting it aside, but they could not see any, sentation was that the company had at its bankers a sum of £87,000 cash
There was no fraud or misrepresentation in the case. His lordship could undivided. The defendant by his defence denied that he ever made any
not think that she could upset this deed in Chancery; and if that were so of the representations alleged, and asserted that the statement as to the Barnes, J., was wrong, and ought to have held that that was a sufficient undivided sum of £87,000 was true. The pleadings having been closed,
answer to the lady. The appeal must succeed and be allowed with costs. Kekewich, J., made an order on summons, before the action had been set
CHITTY, J., agreed. He said that the Act of 1857 enabled the court to down for trial, that the plaintiff, the applicant, be at liberty upon three
secure to a divorced wife such gross or annual sum as should seem reasonclear days' notice in writing to Messrs. Smith, Payne, & Smith, bankers, able. Under that section (32) his lordship questioned whether the court to inspect and take copies of or extracts from any accounts in the books
had any jurisdiction to order that such sum should be inalienable. The of the bankers in the name of the Gresham Gold Exploring Syndicate answer was that there was no precedent for it. When the order was (Limited), pursuant to the provisions of the Bankers' Books Evidence Act,
once made between husband and wife who were divorced, and were sui 1879, but such inspection was to be limited to shewing the balances of the juris, that seemed to his lordship to determine at once the jurisdiction of said 'company in the books of the said bankers on the 2nd of December, the court except as to carrying out the terms of its own order. Harrison v. 1895. Section 7 of the Bankers' Books Evidence Act, 1879, is as follows: Harrison (ubi supra) governed this case under section 32 of the Act of 1857. “On the application of any party to a legal proceeding a court or judge That was a clear decision that whatever came to a divorced wife was may order that such party be at liberty to inspect and take copies of any property, and consequently she could assign it. The lady would only be entries in a banker's book for any of the purposes of such proceedings. spending her money in vain if she tried on equitable grounds to upset this An order under this section may be made either with or without summon- decision. The mere improvidence of the bargain and inadequacy of the ing the bank or any other party, and shall be served on the bank three consideration would not justify the court in setting the deed aside. Had clear days before the same is to be obeyed, unless the court or judge there been any overreaching or anything approaching to fraud it would otherwise directs." The defendant appealed, and urged that, apart from have been a different matter. Appeal allowed.--CounsEL, Inderwick, Q.C., the Act, entries in bankers' books would not be evidence against third and Grazebrook ; Lambert Bond. Solicitors, A. Scott Lawson, for Phillips & parties.
Randle Ford, Windsor ; C. E. Newnham. The Court (LINDLEY, M. R., and CHITTY, L.J.) allowed the appeal.
[Reported by W. SHALLCROSS GODDARD, Barrister-at-Law.] LINDLEY, M.R , said that the case was one of enormous importance to the public and to the commercial community. He thought the order Re, AN ARBITRATION BETWEEN PALMER & co. AND HOSKEN, inade was absolutely contrary to every principle of law and to the settled TREVITHICK, POLKINGHORN, & CO. (LIM.). No. 2. 26th Oct, and practice of the courts. It was said that it could be done under section 7
9th Nov. of the Act. The Act was passed for a very definite purpose, to protect ARBITRATION-ARBITRATORS-Misconduct Refusal TO STATE CASE FOR bankers from the very great inconvenience of having to produce all their
OPINION OF THE COURT, OR TO ADJOURN THAT COURT MAY BE APPLIED TO books, &c., on subpæna. Section 7 bad nothing to do with protecting TO ORDER A CASE --APPLICATION FOR Case MADE BONA FIDE AND NOT FOR bankers from that inconvenience, it had to do with litigants. If the PURPOSE OF Delay – REMITTING MATTER TO ARBITRATORS for Reconsection were read literally, it would mean that any party to a proceeding SIDERATION AFTER AWARD MADE-ARBITRATION Act, 1889 (52 & 53 Vict. miglt take copies of entries of the banking account of a third party. Such
C. 49), ss. 10, 11, 19. an interpretation would be simply monstrous, and his lordship would not be a party to any such decision. It obviously meant copies of any entries Appeal from a decision of Day, J., at chambers, remitting an award in of parties to the litigation, and no other. It might be that at the trial this arbitration to the directors of the Liverpool Corn Trade Association the court might make an order on a person who could be subpænaed to (Limited), the arbitrators, for reconsideration, and ordering them to state bring copies of the account. But that was not the present case. They a case for the opinion of the court on a certain question of law. The wanted to see the credit which was standing to the company's account at appeal was argued on the 26th of October, when judgment was reserved. a particular date. They would be able to overhaul the whole account, and The Court (LINDLEY, M.R., and Chitty, L.J.) slightly varied the order would see all the particulars to which the figures related ; in short, they of Day, J., but dismissed the appeal. would have a roving inspection of the whole account. The order must Lindley, M.R., said : In this case the dispute arises between the be discharged altogether with costs, and the plaintiff must be left to do ultimate buyer and the seller of a cargo of corn. The contract between what he could at the trial, and the bankers must be left to the pro- the buyer and the seller contains some clauses which are material for tection of the Acts. It would be far too mischievous and oppressive. understanding the nature of the dispute and what has been done. Palmer Chitry, L.J.-The Act of 1879 was divided into two portions : sections is the buyer and Polkinghorn the seller. The buyer bought the cargo in
a ship called The Port Douglas, loaded at San Francisco or thereabouts, 3-6 were intended to relieve bankers, and section 7 was different. This was an attempt to obtain inspection of the account of a third party by and agreed to pay 33. per 100lbs. gross, including insurance. Then means of section 7. In such a case the court must exercise the greatest there were provisions about the discharge of the cargo and so on. The caution. The inspection must run over at least five months in order to quantity shipped in bags was to be paid for as wheat. The wheat was to ascertain the balance on 2nd of December, and the plaintiff would have be, weighed in drafts of not less than 250lbs., or, at the buyer's the right to see the account from the 30th' of June to the date, he would option, at even weights smaller than that. Then there is an arbitra
tion clause. be entitled to look not merely at the figures but the names, and would
The provision is to the effect that the sellers should ransack the account and obtain particulars of what he had no right to put in a provisional invoice according to the amounts shipped as per bill look at. In his lordship’s opinion the 7th section was not intended to be of lading. If in the result it turned out that less was delivered they used for any such purpose, and would inflict greatinjustice on a third party | altered accordingly. This provisional invoice is important. What after
would have to pay for the deficiency, and if more the price would be if any such order were made. Appeal allowed.-Counsel, Romer; A. JA wards happened was this. Walter ; Ernest Pollock. SOLICITORS, Cheston & Sons ; Wilson, Bristow, & Co., took delivery, as they say, according to the contract, which gave
The ship arrived, and the buyers, Palmer & Carpmael ; H. F. Pollock.
them the option of taking delivery of even weights of less than 250lbs. [Reported by W. SHALLCROSE GODDARD, Barrister-at-Law.]
In point of fact the delivery was made in even weights of 240lbs. That
was assented to by everybody, and is not now complained of. Palmer & Dinn v. Blake (L. R. 10 C. P. 388) and Re An Arbitration between Keighley, Co. paid, under the provisional invoice clause, £16,505, which was cal- Maxsted, & Co. and Bryan, Durant, & Co. (41 W. R. 437; 1893, 1 Q. B. 405). culated on the bill of lading quantities. They say that the quantity they Section 19 has imposed new duties on arbitrators, and has consequently received ex ship was & large number of bags short, and that the made a breach of such duties by them misconduct on their part, although deficiency reduced to money comes to about £442; and they claim to before such duties existed their conduct could not be so regarded. In the recover back that sum from their sellers upon the terms of the contract, present case the question of law raised by the buyer is material if there is contending that there was over-payment to that extent. That is the à deficiency, and is raised bona fide and not at all for delay. On the nature of the dispute wbich was referred to arbitration. The first evidence before us a considerable deficiency seems established; but the arbitrators found that there was no deficiency. Palmer & Co. then parties are not agreed about the matter, and the court does not know appealed, under the arbitration clause in the contract, to the court of what the arbitrator's decision on this question really is. If they find directors of the Liverpool Corn Trade Association (Limited), and the there is no deficiency, no question of law arises ; but if there is a defidirectors have confirmed that award. But before the award was made ciency, the question of law raised by the buyer becomes all-important. Palmer & Co. asked the directors in writing to state a special case raising Under these circumstances the order appealed from should be slightly a certain point of law. The point of law which the learned judge's order varied in its terms, so as to direct the arbitrators to reconsider their award directs them to raise is this. It is ordered that the award in the and to state whether there is a deficiency or not, and, if there is, then to arbitration and the matters referred to in the arbitration be remitted to state the special case. In substance, however, the order is right, and the the reconsideration of the directors, and that the directors shall appeal must be dismissed. state in the form of a case for the opinion of the court the
CHITTY, L.J., delivered judgment to the same effect. --Counsel, R. M. following question of law : Whether Palmer Co entitled to be refunded by Hosken & Co. (Limited) in respect Bram and Edward Bray ; ï. &. Carver. Solicitors, Tilleards ; Simpson & of the actual deficiency in the cargo of wheat below the bill of lading
[Reported by R. C. MACKENZIE, Barrister-at-Law.! quantity, notwithstanding that the cargo was shipped in the hold and rebagged and weighed at even weights of less than 250lbs. per draft, contrary to the terms of the contract. It appears that when the captain of the ship found that Palmer & Co. were taking delivery in this form, by
High Court-Chancery Division. even drafts of 240lbs., he objected, and said that as they had not chosen to pursue their contract the ship would not be responsible. Palmer & Re HEYWOOD, HEYWOOD v. HEYWOOD. Stirling, J. 27th Oct., 6th Co.'s view of that is that they have nothing to do with the ship, that they
Nov. are not going to enter into any quarrel about the ship, but that by reason ADMINISTRATION PRACTICE – PRIORITIES–Rates—PREFERENTIAL PAYMENTS of the contract Hosken & Co. (Limited) are liable. A question may, of IN BANKRUPTCY Act, 1888 (51 & 52 Vict. c. 62), s. 1, SUB-SECTION (6), course, arise between the first buyer of the wheat and the ship. There AND S. 3. fore Palmer & Co.'s object was to get the arbitrators to state a case as to Hosken & Co.'s liability, and they now ask this court to say, in substance,
The operation of the Preferential Payments in Bankruptcy Act, 1888, is that the arbitrators have nothing to do with any controversy as to the to give in the administration of the estate of a person who died intestate ship: That is the short substance of the dispute. The directors not only after the commencement of that Act priority over all his other debts to declined to state a case to enable Palmer & Co. to raise this controversy, debts in respect of poor and other rates due from the intestate. This case but also declined to adjourn to give Palmer & Co. an opportunity of raised an important question as to the effect of the Preferential Payments applying to the court for a direction that they should, as arbitrators, state in Bankruptcy Act, 1888, in regard to the priority of certain rates in the a case. The reason why that refusal was made appears from the atidavit administration of the estate of a person wbo died intestate and insolvent. of Mr. Anderson Taylor, who was the chairman of the directors. He says creditors for the administration of the estate of the intestate John Hey.
On the 29th of March, 1897, the usual order was made at the instance of (paragraph 3) that on the consideration of the appeal and the application wood deceased, who died on the 6th of January, 1896. to state a case for the opinion of the court, he and his co-directors were
That order was of opinion that the award should be confirmed, and that they were com
duly prosecuted, and it appeared that the estate was insufficient for the petent to do that, and that there was no ground for seeking the assistance payment in full of the intestate's debts and liabilities, and the question of the court. That statement is consistent with more views of the facts which was to be decided was whether certain rates, including poor rates, tban one.
It may be that the directors had come to the conclusion general districts rates, and highways rates, due at the date of the intesthat there was no deficiency; they may have been at least not satisfied tate's death, were to be paid in priority to the other debts. The point that there had been any over-payment. That view has occurred to Messrs.
was raised upon a summons by the creditors in respect of the abovePalmer & Co. as possible, and they have laid before us evidence that the mentioned rates, seeking the opinion of the court whether their claims fact of the deficiency was not really in controversy. The reason given for
were entitled to priority over all the other debts of the intestate, and the not granting the application to state a case, or adjourning that Palmer & learned judge held that they were entitled to such priority. Co. might apply to the court for a direction to state one, is also consistent STIRLING, J., referred to the provisions of the Preferential Payments in with the directors having taken another view-that, in point of law, in Bankruptcy Act, 1888, and proceeded as follows: That Act came into consequence of the course taken by Palmer & Co., they could not make operation on the 1st of January, 1889, and it has therefore been in operaapy claim in respect of any deficiency there might be; and that is the tion eight years. I have thought it right to make inquiry as to what has view which Palmer & Co. say has prevailed, and which they contend is been the practice in chambers during that period. The result of those wrong in point of law. Having regard to the terms of the contract, and inquiries is that I find there is really no fixed practice. Throughout especially to the option given to them by their sellers, the question arises the whole of that period one master appears to have adopted one course --and it is an important one-whether the court has jurisdiction to make and another the opposite, and I cannot find that the question has ever the order which Day, J., has made. That question turns upon three been brought before a judge of this division personally even in chambers,
ections of the Arbitration Act, 1889- viz., sections 10, 11, and 19. I will and certainly there has been no adjudication on the subject. Now, in the read section 19 first : “Any referee, arbitrator, or umpire may, at any year 1895 there was decided by the Court of Appeal the case of Re Leng stage of the proceedings under a reference, and shall, if so directed by the (1895, 1 Ch. 652). This case seems to me to be decided on the principle court or a judę o, state in the form of a special case for the opinion of the expressly stated by the present Master of the Rolls, at p. 657 of his judg. court any question of law arising in the course of the reference.” Section ment, that “the rules in bankruptcy as to debts and liabilities proveable 10 applies, as I have said, only before the award is made. It runs thus : must now, I think, include all rules as to priorities expressly enacted by .. (1) In all cases of reference to arbitration the court or a judge may from any statute and made applicable in the event of bankruptcy.” It is contime to time remit the matters referred, or any of them, to the reconsidera- tended on behalf of the creditors for rates that this principle ought to be tion of the arbitrators or umpire." Section 11 contains this provision : applied in the present case. It s not disputed on the other side that “* (2) Where an arbitrator or umpire has misconducted himself, or an arbi. that priority could be imported into the administration of insolvent estates tration or award has been improperly procured, the court may set the award by courts of equity if section 1 of the Act of 1888 stood alone ; but it is aside.". Those are the sections which are material. The Arbitration Act, 1889, said that section 3 expressly limits the operation of the Act to receiving s. 19, gives the court very extensive powers over arbitrators beyond any orders, orders under section 125 of the Bankruptcy Act, 1883, and the which the court previously possessed. It impliedly confers on the parties winding up of companies. If this latter contention is to prevail, the to an arbitration the right to apply to the court for an order directing the effect of section 3 will be to operate as a repeal of the statutory provision arbitrator to state in the form of a special case for the opinion of the of the Judicature Act, 1875, as interpreted by the Court of Appeal in Re court any question of law arising in the course of the reference. The Leng, so far as relates to the administration of insolvent estates of deceased right thus conferred must be respected by the arbitrator; and if a party persons in courts of equity. In my judgment this is not the true effect to an arbitration, acting bona fide, requests an arbitrator either to state a of section 3. Section 3 appears to me to provide that not every adminisspecial case raising a question of law arising in the course of the reference tration in bankruptcy or winding up is to be affected by the Act, but only and material for consideration, or to delay his award until the party can those where an order has been made after the period fixed for the comapply to the court for an order directing a special case, and the arbitrator mencement of the Act, and I do not think it was intended by the Legisrefuses to comply with either of such requests, the arbitrator is, prima lature to exclude the operation and application of section 10 of the Judi. facie at all events, guilty of a breach of duty towards such party. Such a cature Act, 1875. By the combined effect of section 1, sub-section 6, and breach of duty is prima facie misconduct on the arbitrator's part within the section 10 of the Judicature Act, 1875, the limitation imposed by section meaning of section 11 of the statute, and justifies the court in setting 3 of the Act of 1888 has been imported into the administration of estates aside the award under that section, or in remitting it for further consider by courts of equity--that is to say, the rule introduced into bankruptcy ation under section 10. Even in such a case as that supposed there may by the Act of 1888 will apply only when the death (by section 1, sub-section possibly be some grounds for justifying the refusal of the arbitrator, 6, substituted for a receiving order) occurs after the commencement although it is not easy to imagine any. But it is obvious that, if an of the Act.-Counsel, G. Humphry; Curtis Price. SOLICITORS, Torr, application for a special case is frivolous, and is made merely for delay, Gribble, Oddie, f Sinclair, for A. Roberts, Barnstaple; C. W.F H. B. an arbitrator will be perfectly right to refuse it, and will be upheld by Taylor. the court in so doing. This view of the law is quite consistent with
[Reported by W. Scott THOMPSON, Barrister-at-Law.]
lady it was contended that no waste or misuse of water could ensue from High Court-Queen's Bench Division. the addition of the stop-tap to the pipe. During two consecutive winters
the pipe had burst, and it was, therefore, greatly to the advantage of the SHAW v. LUTMAN, Div. Court. 2nd Nov.
water company that this alteration should be made, but, apart from that COUNTY COURT-APPEAL-PRACTICE – 38 & 39 VIct. c. 50, s. 6-REQUEST TO
fact, it was argued that the undertakers had no power to object because JUDGE TO TAKE A Note—ACTION BY MORTGAGER—MESNE PROFITS, introductory words, which clearly shewed that they, as the authority,
the sections under which they purported to proceed were governed by the APPLICATION FOR SECURITY FOR Costs-INSOLVENCY.
could only interfere to prevent any waste or misuse” of water supplied This was an application by the respondent that the appellant should be by them under powers given by section 57 of the Public Health (Water) ordered to find security for costs. The facts were these : C. G. Shaw, a Act, 1878. Further, it was contended that a stop-tap was not an solicitor practising as Reading, sued the defendant, A. E. Lutman, a "apparatus" or "alteration" within the meaning of section 19 of the butcher of Frimley, Surrey, to recover possession of_premises in the Act of 1863. defendant's occupation. The action was heard at the Farnham County THE COURT (WRIGHT and KENNEDY, JJ.), without hearing counsel for Court in November, 1896, by His Honour Judge Vernon Lushington. The the respondents, dismissed the appeal. In their opinion the words of the plaintiff sued as mortgagee and claimed possession of the premises in Act were too clear to permit of argument. It was obviously necessary question under two mortgages, each for £400. He also claimed £33 103. that the water authority of a district should be informed before any as mesne profits. The mortgages were created by William Lutman, the alteration was made in the pipes which supplied the water to their cusfather of the defendant, who had become a bankrupt in 1891, and his son tomers; otherwise they might have no means of knowing or controlling then took over and continued to carry on his father's business. The what was being done. The magistrates were right in the decision they learned judge stopped the case so soon as the mere facts had been stated had come to, and the appeal must be dismissed. Conviction accordingly and directed judgment to be entered for the plaintiff. Counsel for the affirmed.-COUNsel, English Harrison ; Temple Franks. SOLICITORS, Bell, defendant thereupon asked his lordship to take a note. This bis honour Brodrick, of Gray, for W. D. Henderson, Llandudno; Belfrage & Co., for refused to do on the ground that the application was too late. The Chamberlain & Johnson, Llandudno. appeal from this judgment was heard on the 21st of January, and the
[Reported by ERAKINE REID, Barrister-at-Law.] court (Wright and Bruce, JJ.) held that the learned county court judge was wrong in refusing to take a note. In the result the Divisional Court
CLARKE v. POUNTNEY AND OTHERS. Div. Court. 4th Nov. directed a new trial. The case then again came on for re-trial before his honour at the county court at Farnham in July, this time with a jury, and PRACTICE— PLEADING -- Default of PLEADINGS—MOTION FOR JUDGMENTa verdict and judgment was entered for the plaintiff. From the verdict
INJUNCTION-ORD. 27, R. 11. and judgment on the new trial the defendant lodged an appeal,
This was a motion for judgment under ord. 27, r. 11. The action and it was in respect of this appeal now pending that the mortgagee was for damages for conspiracy, for the delivery up of certain documents, made an application on the 2nd of November for security to be and for an injunction. No appearance was entered.
A statement of given for costs. In support of the ation, counsel contended that, claim was filed, but no defence was delivered. According to the stateas the defendant was a bankrupt, he having filed his petition early ment of claim, the defendant Pountney was, from the 2nd of December, in 1896, such an order ought to be made. Counsel who appeared 1895, to the 5th of June, 1896, in the employ of the plaintiff, who was a to oppose the application submitted that his client was the tenant in stock and share merchant, as clerk upon the terms that he should treat as law of these premises, and as such entitled to six months' notice, and confidential such information as ha obtained from the plaintiff's books he pleaded that there were special circumstances and that where such and papers. Pountney afterwards entered the service of the other defencircumstances existed the court would not make an order. He referred to dants, and the statement of claim alleged that Pourtney, in collusion with Usil v. Brearley (3 O. P. D. 206), where it was held that an appellant the other defendants, made use of information obtained while in the would be ordered to give security for costs of the appeal who was in plaintiffs' employ. The statement of claim claimed, among other insolvent circumstances and also was vexatiously and unreasonably prose- remedies, an injunction to restrain the defendants from making use of the cuting the appeal. Cockburn, C.J., in his judgment, said: “I think that nformation obtained by Pountney. in considering the question we are justified in taking into account not
The Court (WRIGHT and KENNEDY, JJ.) ordered the motion to stand merely the pecuniary position of the appellant but also the other circum.
over till trial. They said that before the statement of claim the plaintiff stances of the case. If the court were of opinion that the appellant had any reasonable ground for going on with his action they should not allow SOLICITORS, Godwin F. Chater.
was not necessarily entitled to an injunction.- CounsEL, R. E. Moore. mere poverty to stand in the way of his appeal.” In the case of Rourke v. The White Moss Colliery Co. (1 O. P. D. 556) the Court of Appeal refused
[Reported by C. G. WILBRAHAM, Barrister-at-Law.] to require an insolvent sppellant to give security for costs of the appeal
MADELEY v. GREENWOOD, Div, Court. 4th Nov. where the question at issue had not been previously considered in a court of error. The points raised by the facts and admitted at the two trials SHERIFF – Fees — POUNDAGE - ExecutION STOPPED OR WITHDRAWN before the learned county court judge, counsel now contended, involved SHERIFF8 Act, 1887 (50 & 51 Vict. c. 55), s. 20 (1) and (2) --ORDER OF questions of law which had never been argued before a Divisional Court. THE 31st or August, 1888, As To Fees. The facts in the present case were similar to those in Whittaker v. Hales
This was a motion by the sheriff of Staffordshire for an order com(7 Bing. 322)., The appellant, therefore, had a reasonable ground for manding the district registrar of the High Court to tax certain costs of going on with his action, and brought himself within the rule in Usil v.
an execution. A writ of fi. fa. was handed to the sheriff on the 5th of Bréarley (ante). At the conclusion of the argument, THE COURT (Wright and KENNEDY, JJ.) said they were of opinion that which were more than sufficient to satisfy the judgment debt and costs ;
June, 1897. The sheriff seized the goods of the defendant in the action, the appellant must give £10 security. The costs of this application to be but on the 11th of June the solicitor of the execution creditor telegraphed costs of the appeal.- COUNSEL, Spokes ; Grimwood Mears. SOLICITORS, J.
to the sheriff to stop the execution, which was accordingly withdrawn. O'B. Hale, for C. G. Shaw, Reading; J. Tickle.
The sheriff sent in his bill to the execution creditor as upon a fructnous [Reported by ERAKINE Reid, Barrister-at-Law.]
execution. The district registrar, in taxing the bill, refused to allow
poundage on the ground that the sheriff never actually handled any sum WILLIAMS (Appellant) •. LLANDUDNO DISTRICT COUNCIL (Respon- of money. The presen: motion was for an order to the district registrar dents). Div. Court. 3rd Nov.
to tax the costs in respect of poundage. The sheriff's claim to poundage PUBLIC HEALTH-WATER-ALTERATION BY OCCUPIER OF SUPPLY PIPE BY
was based upon the Sheriffs Act, 1887 (50 & 51 Vict. c. 55), s. 20, which ADDITION THERBTO OF A STOP-TAP-Consent of UNDERTAKERS must | Chancellor and the judges, with the concurrence of the Treasury. The
provides that the amount shall be fixed from time to time by the Lord FIRST BE OBTAINED - WATERWORKS CLAUSES Act, 1863 (26 & 27 Vict. c.
sheriff's fees for executing writs of fi fu. are fixed by an order made on the 93), s. 19; Public HEALTH "Vater) Act, 1878 (41 & 42 Vict. c. 25), 31st of August, 1888. No. 11 in the table of fees deals with sheriff's
poundage, which is fixed at the same amount as before the making of the Case stated by justices for the county of Carnarvon. An information order -- that is to say, one shilling in the pound for the first £100 and sixwas preferred against the appellant, Clara Pain Williams under section pence in the pound for every pound above £100, " that he shall levy or 19 of the Waterworks Clauses Act, 1863, for that she had affixed a extend and deliver in execution." The following note is appended to the certain stop-tap to a certain water-pipe, being a service-pipe belonging table: "The foregoing fees, numbered 2, 3, 4, 5, 6, 8, 9, 10, 11, shall be to her use for the conveyance of water to a house in Church Walks, Llan- levied in every case in which an execution is completed by sale, as fees dudno, without baving first obtained the consent of the urban district payable to sheriffs were levied before the making of this order. In every council. The justices convicted the appellant, and fined her oue shilling case where an execution is withdrawn, satisfied, or stopped, the fees and costs. The case stated that the lady was in the habit of leaving her under this order shall be paid by the person issuing the execution, or the house locked up during the winter months, and that she had had this person at whose instance the sale is stopped, as the case may be ; and the stop-tap fitted to the pipe in question to enable her to turn off the supply amount of any costs and charges payable under this scale shall be taxed and thus prevent damage to her house and furniture in the event of the by a master of the Supreme Court or district registrar of the High Court pipes bursting during a frost. Section 19 of the Waterworks Clauses (as the case may be), in case the sheriff and the party liable to pay such Act, 1863, is one of a group of sections headed “ Protection of Water" costs and charges differ as to the amount thereof." It was contended on which are introduced in the Act by these words: “And with regard to behalf of the execution creditor that there was no appeal from the deci. the waste of water and misuse of the water supplied by or belonging to sion of the taxing-master or district registrar. Townend v. Sheriff of the undertakers, be it enacted, &c." The material part of the section is Yorkshire (24 Q. B. D. 621) was cited as follows: “It shall not be lawful for the owner or occupier of any THE COURT (Wright and Kennedy, JJ.) mide the order prayed for. premises to affix or cause or permit to be affixed any pipe or apparatus Wright, J., said that Townend v. Sheriff of Yorkshire did not decide the to a pipe belonging to the undertakers or to a communication or service i present point. In that case it was not intended to say that where a whole pipe, or to make any alteration in any such communication or service pipe, head of fees was struck out there was no appeal. It was clear froin the without the consent in every such case of the undertakers," For the Sheriffs Act and the order made thereunder that where the execution was