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wife's right of indemnity does not arise. In the latter case insurance the societies, as Mr. PENNINGTON foresees, will have the wife was entitled under the will of her grandfather to take account of the competition of mutual insurance. But if, to a life interest in considerable property for her separate as he says, the leading accident societies are prepared to take use without power of anticipation. Under a settlement made up the matter in a liberal spirit towards the colliery interests on the marriage, the husband was entitled to an annual in- they will be pretty sure to get the greater share of the new come of £2,000, subject to its passing to the wife on his business. bankruptcy or attempt at alienation. In 1882 an order was made under section 39 of the Conveyancing Act, 1881, whereby THE CASE of Brownscombe v. Johnson, in which the Lord Chief the wife's life interest was mortgaged to secure the sum of Justice and MATHEW, J,, gavo judgment on Tuesday last, adds £23,000, and in 1887 a similar order was made for the another to the already long list of cases in which the validity of purpose of raising a further sum of £22,000. The money a bye-law made under section 23 of the Municipal Corporations was required to enable the husband to pay debts for which he Act, 1882, has been called in question. The bye-law in quoswas personally liable, but which were contracted, as the Court tion was made by the Kent County Council, and provided that of Appeal held, for the joint purposes of the husband and wife "no person shall sound or play on any musical or noisy instruin order to enable them to indulge in an expensive mode of ment or sing in any public place or highway within fifty yards living. The orders of 1882 and 1887 were made by CHITTY, J., of any dwelling-house after being required by any constable or by and they did not express that the husband was to be subject to an inmate of such house or his or her servant to desist." The main liability to indemnify the wife, an omission which KEKEWICH, J., objections taken to the bye-law were, first, that it was not made an held to be equivalent to an exclusion of such liability. But, as ingredient of the offence thereby created that the act should be we pointed out at the time (ante, p. 92), the omission of an done" to the annoyatce" of some person; and secondly, that it express indemnity is not inconsistent with the preservation of an gave a very arbitrary power to a single constablo. The decisions implied indemnity, and the Court of Appeal have held that the on local bye-laws have been so diversified that it is not surprissilence of the order of the court as to the liability of the husband ing that the learned judges differed in opinion, Lord RUSSELL does not necessarily exclude the ordinary rule. “We are not C.J., upholding the bye-law, while Mathew, J., held it to be prepared,” said LINDLEY, M.R.,"to say, as a matter of law, that udreasonable and bad. The validity of bye-laws as to ungeemly an order silent as to the wife's rights against her husband is fatal noise has been discussed in several cases, thanks mainly to to the existence of such rights." Apart, however, from this the activity of the Salvation Army, and on comparing the cases consideration, there was sufficient in the circumstances of the it will be found that the bye-laws on this subject which case to prevent the inference that it was the intention of the have been upheld have been of a more restricted character than parties to give the wife a right of indemnity against her hus- that in Brounscombe v. Johnson, while those which have been band, and on this ground the decision of KEKEWICH, J., was condemned have been of a wider scope: the precise words here affirmed. One matter wbich influenced the Court of Appeal in adopted by the Kent County Council seem to lie in medio. Thus arriving at this result was that, since the right of indemnity was in Reg. v. Powell (51 L. T. 92) a bye-law was upheld which assignable, it might in the hands of an assignee have been used forbade playing or singing in á street after being required to against the husband and so have produced the bankruptcy which desist by a resident or by a constable on account of the illness it was the object of the applications under the Conveyancing of an inmate of a house, or for any reasonable cause. Here the Act to avoid. But it seems to have been sufficient for the de- objectionable power given to any constable was present, but cision that the debts were substantially the joint debts of his action was restricted to cases where there was reasonable husband and wife.
cause for interference : the justices, it was held, were to decide whether there actually was reasonable cause.
In Booth v. AT THE annual meeting of the Law Accident Insurance Howell (53 J. P. 678) a bye-law probibiting the use of a noisy Society on Wednesday, a very interesting statement was made instrument in the street to the annoyance of any of the inby the chairman, Mr. RICHARD PENNINGTON, as to the prospects habitants was held reasonable ; and Innes v. Newman (42 W. R.
On the other hand, where a of insurance business under the Employers' Liability Act, 1897. 573), is a very similar decision. It appears that according to the returns of the German state bye-law absolutely forbade anyone (except certain military insurance system for last year, nearly 18,000,000 workpeople persons) to play on any musical instrument in a street on were interested, and 500,000 were actually benefited, the com- Sunday, it was held to be bad: Johnson v. Mayor of Croydon pensation paid amounting to over £3,000,000.
The figures (16 Q. B. D. 708). anticipated for this country are not so large, but they are large enough to show that the Act will impose on employers a burden THE NECESSITY for words importing that the act must be done which it will be very dangerous for them to accept without the so as to cause annoyance is brought out by the two cases of help of insurance. Mr. PENNINGTON adopts the statement that Strickland v. Hayes (44 W. R. 398) and Mantle v. Jordan (1897, 1 something like 6,000,000 of workpeople will be affected by the Q. B. 248). In the former a bye-law directed against the use of Act, and that since the benefits provided under the English obscene language and the singing of obscene songs in any street system are considerably in excess of those provided under the or public place or on land adjacent thereto was held bad for the German system, the sum that will be paid annually as compen- want of words of such import as well as for other reasons ; in sation is not likely to fall far short of £1,000,000. Until the the latter a bye-law directed to the same end but containing the nature of the risk is better understood the · terms on words "to the annoyance of persons in the street was held to which it can be covered by insurance will be necessarily be good. As to the power given to a single policeman, this was experimental, but the Law Accident Society has, it seems, not held to invalidate the bye-law in Reg. v. Powell (supra), but not been slow to make preparations for the access as already observed, his power was there restricted within reasonof business which is to be expected under this head. A consi. able limits; and in' Alty v. Farrell (1896, 1 Q. B. 636) (a case derable part of Mr. PENNINGTON's speech was devoted to the com- relating to a bye-law under a very special power in the Weights parative advantages of mutual insurance and insurance in the and Measures Act, 1889, and not made" for good rule and governregular societies, and he naturally argues in favour of the latter ment" under the wide terms of the Municipal Corporations Act) an form of insurance. This is a matter which the employers will objection was successfully founded (amongst other grounds) on the have to settle for themselves. The regular societies are more power given to a constable to insist arbitrarily on the weighing of convenient to do busin osa with, and their employment is purely coal in course of delivery to a purchaser. The tendency of the courts a question of probable expense. Mutual insurance clubs involve at the present day is to uphold bye-laws made by a representaan element of rick which the employers will or will not under- tive body for the government of their area of jurisdiction, and take, according as they think the rates of premium charged by authority is on the whole in favour of the bye-law in question the insurance societies reasonable or no. In the club the mem- in Brownscombe v. Johnson. But the whole question of the limits bers between them have to provide for any losses which may fall to be imposed on this local legislation needs discussion, and it is upon any of them, whilo in ordinary insurance the loss is satisfactory that an opportunity is to be given for an authoritalimited to the amount of the premiums. In marine insurance tive pronouncement on this subject by the consideration of the two systems flourish side by side, and in employers' liability Kruse v. Johnson (a case arising under the same Kentish bye-law as that in Brownscombe's case) by a full court of the Queen's even where these results have been avoided by the courts—as Bench Division. Apart from the questions to which we have in the recent cases of Monnier (Veuve) et ses Fils (45 W. R. 449) alluded, the makers of bye-laws would be glad to hear the and Ibbotson v. Ibbotson Bro8. g Co. (Limited) (ante, p. 340), correct solution of the following dilemma—a bye-law must not shareholders who have acted bona fide have been placed in a be contrary to the ordinary law of the land ; if it deals with position of extreme peril. what is already an offence by the ordinary law it will be either But, apart from cases where the omission to comply with the superfluous or ultra vires ; if it creates a new offence it is in requirements of the section has arisen from oversight, there is great danger of being held to be bad for variance with the law. the still more important class where the vagueness of the section
has proved a trap to persons who had every desire and intention
to comply with it. The section calls for the filing of “a contract THOUGH SECTION 4 of the Statute of Frauds requires a duly made in writing.” To secure perfect safety it was wise to guarantee to be in writing, and no action is therefore main- assume that this referred to the original contract providing for tainable on a verbal guarantee, nevertheless parol evidence is the issue of the shares; but such contracts are often lengthy, admissible to prove that a guarantee in writing was in fact and contain matter which there is no occasion to make public, given, where the document itself is missing and cannot therefore and the practice soon became prevalent of supplementing it by be produced. Obviously, however, there is great risk in ad. a subsidiary contract providing specifically for the issue of the mitting such evidence, and, save under very exceptional circum- shares, and then filing the subsidiary contract. The technical corstances, it ought not, we submit, to prevail. That such circum- rectness of this expedient was, however, doubtful. Assuming the stances, however, existed in the very recent case of Barsas: v. second agreement to be a contract at all, it was made upon no Read is indisputable. There the missing guarantee sued upon new consideration, and the want of actual consideration was not was given to secure payment of £100 damages and costs very satisfactorily met by affixing to the agreement the seal of by the defendant in a libel action which, at the trial, the
company. was settled on the terms (amongst others) that such a The question of the validity of this procedure was raised in guarantee should be given. That a guarantee of some sort the recent case of Re Kharaskhoma Syndicate (Limited) (supra), had been given was admitted, but its precise terms were in con- and its discussion resulted in a difference of opinion betweeu troversy, and the surety moreover alleged that she had signed Lord Justice (then Mr. Justice) VAUGHAN WILLIAMS and the it in ignorance of what she was doing and of the liability thereby Court of Appeal. The syndicate had entered into an arrangeundertaken. On behalf of the plaintiff in the action on the guar- ment with the Concessions Development Co., under which the antee, evidence was given by the defendant's counsel in the libel company was to give the syndicate financial assistance and take action, and also by the plaintiff's solicitor, whose respective part in its management. As remuneration for these services statements as to the contents of the guarantee and also as to the certain preference shares in the syndicate were to be allotted to circumstances under which it was given, substantially agreed. the company, and an agreement of the 17th of August, 1892, in It was accordingly held, upon this evidence, that there must be which the terms of the arrangement were embodied, provided judgment for the plaintiff on the guarantee.
that the "allotment was to be protected by a duly-registered agreement under the 25th section of the Companies Act, 1867."
The contract actually filed was dated the 31st of August, 1892, SECTION 25 OF THE COMPANIES ACT, 1867.
and recited that by the former agreement the syndicate had “ for the considerations therein mentioned
agreed to allot the We are glad to see that an attempt is being made to procure shares. VAUGHAN WILLIAMS, J., held that since the company without further delay the repeal of section 25
of the Companies were, under the terms of the first contract, not bound to accept Act, 1867. Such repeal is one of the proposals of the Companies the shares until a further contract had been made, the second Bill introduced by the Government, but the protracted pro- contract was good as a contract—that is, it was an independent ceedings before the House of Lords Committee make it unlikely contract, and he considered that the consideration was sufficiently that any speedy legislation will result. The Council of the identified by reference to the first contract, especially since the Incorporated Law Society have issued a report on the operation entering into the first contract was in itself a consideration of the section as affected by the decision of the Court of Appeal for the second. in Re Kharaskhoma Syndicate (46 W. R. 37; 1897, 2 Oh. 451), But the Court of Appeal took a stricter view of the requireand it is at their instance that the Companies Act (1867) ments of the section. "Possibly the second contract would have Amendment Bill, which has for its object the repeal of the been enough had it stated specifically the consideration for the section, has just been introduced in the House of Commons by issue of the shares, though there would still have been the Sir John LUBBOCK. Within the last few days the Council have objection that it was simply a repetition of the first contract, issued also a further report calling attention to the latest and the safe course would have been to register the two contracts decisions on the section.
together. It was held, however, that the disclosure of the real By the section it is enacted that “every share in any company consideration was essential in order to make such a document shall be deemed and taken to have been issued and to be held as would satisfy the section. “The registered document, subject to the payment of the whole amount thereof in cash, said LINDLEY, LJ., "must be a contract in writing, and unless the same shall have been otherwise determined by a con- the thing registered' must disclose the consideration, whether tract duly made in writing, and filed with the Registrar of Joint- it is a deed or a simple contract." The court carefully Stock Companies at or before the issue of such shares." The abstained from saying with what particularity the consideration wording of this provision has often been criticized, and in par- must be stated, but it follows from the decision that sufficient ticular the use of the expression
" the same
is a striking must be said to show, without reference to any unfiled docuinstance of loose drafting ; but the idea which the draftsman ment, what the consideration really is, and this effect was given had in view is sufficiently clear, and, had it been properly carried to it by KEKEWICH, J., in Re Maynards (Limited) (ante, p. 308). out, there would have been no reason to quarrel with the There the filed agreement recited in full the price to be paid section. It was intended to provide a safeguard against the and the manner of payment, but it described the property sold issue of a company's capital in the form of paid-up shares as “the businesses and property” mentioned in the first part without giving the public an opportunity of discovering that the of the schedule to the principal contract,
and “the leasehold capital or some part of it was not represented by cash payments. hereditaments, short particulars of which were set out in the But the proper way of doing this would have been to require second part of the schedule. KEKEWICH, J., held that this gave that returns of shares issued as fully or partly paid should be no real information as to the subject matter of the purchase, made to the registrar, and in default to inflict a penalty upon and that the filed contract was insufficient. the officers of the company. Instead, the Legislature called for The above decisions have naturally created a feeling of great the filing of a contract, which was quite unnecessary, and in insecurity with regard to the numerous issues of paid-up share case of default visited the shareholder with a penalty measured which have been made of recent years in reliance upon
the by the full nominal value of the shares. It was a clumsy piece filing of supplemental contracts, and legislation is urgently of legislation which has led to results of extreme injustice, and required both to remove doubts as to past transactions and to place the matter upon a more satisfactory footiog for the future. pages to 655 without having impaired its value or sacrificed anything The Incorporated Law Society's Bill deals with both these of real importance. On the contrary, he has been able to strengthen points. The second clause provides that whenever any contract the portion of the work relating to criminal procedure and to include or other document relating to the issue of paid-up or partly whether of law or of practice, with which persons frequenting
other information of a practical character concerning those questions, paid-up shares has already been filed with the registrar with a quarter sessions should make themselves acquainted. In its main view to complying with the requirements of section 25," it features the old arrangement has been preserved. We notice, howshall be no objection to such contract or other document, so far ever, that what were formerly Chapters 1 and 2 have now been comas regards the said section, that it does not disclose or suffi- bined, so as to form together Chapter 1 of the new edition, and bearing ciently disclose the consideration for the issue of such shares, or the title “ Of Sessions and the Commission of the Peace”; while the that it only contains a part of the contract relating to the issue chapter on " The Criminal Jurisdiction of the Quarter Sessions" of such shares, or that it does not in law constitute such a con- (Chapter 9), instead of being the last chapter of the work, as heretotract in writing as the said section requires."
fore, has, very properly, been given precedence over those chapters This clause will provide against any further decisions such as The scope of Chapter 7 (Proceedings of the Court of Quarter Sessions
which deal with the " Appellate Jurisdiction of Quarter Sessions." those in Re Kharaskhoma Syndicate and Re Maynards, but for the generally) formning Chapter 6 of the present edition, has been confuture it is necessary to get rid altogether of the necessity for siderably enlarged, and now covers twenty-six pages instead of two. filing a contract, and to provide simply for a return to the On the other hand, the chapter on “Civil and Administrative Jurisregistrar of such information as is really required. This the diction of Quarter Sessions” (Chapter 8 of the new edition) has Bill does by clause 3, which is in the following terms :
been reduced from 377 to 69 pages, by judicious pruning. The new “(1) Whenever, after the commencement of this Act, a com- edition is well up to date, both as regards the citation of statutes pany limited by sharos makes an issue of shares in its capital, and cases. Amongst the former, such recent statutes as the Oaths such company shall
, within one month thereafter, send to the Act, 1888, the Lunacy Act, 1890, the Summary Jurisdiction (Married Registrar of Joint-Stock Companies a notice in writing, (London) Act, 1896, the Burglary Act, 1896, the Juries Detention
Women) Act, 1895, the Larceny Act, 1896, the Quarter Sessions stating
Act, 1897, and the Infant Life Protection Act, 1897, are now duly “(a) The number, class, and nominal amount of the shares noticed ; while, amougst the latter, the very recent case of Boulter comprised in such issue; and
v. Kent Justices (46 W. R. 114 ; 1897, A. C. 556), overruling Reg. v. “(6) How many of the said shares were issued on the footing Glamorganshire Justices (1892, 1 Q. B. 621), is cited in its proper that they were to be paid up in cash ; and
place. The following cases, however, seem to have escaped the " (c) How many of the said shares were issued on the footing w. K. 127, 1897, 2 Q. B.' 468), King v. Reg. (61 J. P. 663),
editor's vigilance-namely, Reg. v. Burton, Ex parte Young (46
and that they were to be credited as paid up, or partly paid up, for Suffolk County Lunatic Asylum v. Stow Union (45 W. R. 620). The some consideration other than cash.
appendices (three in number) comprise certain matters of practical “ (2) If default is made in complying with the requirements of importance, such as tables of allowances to witnesses and of the this section, every director, manager, or other officer of the principal indictable offences triable at quarter sessions, together with company who knowingly and wilfully authorizes or permits skeleton bills of cost on appeal and some forms of indictment. An such default, shall be liable to a penalty not exceeding five index of forty-eight pages, containing a variety of suggestive titles, pounds for every day during which such default continues." concludes the work.
It is to be noticed that the above clause differs in an important point from the proposal contained in the Government
COMMON LAW. Bill. Under clause 7 of that Bill the company will be bound A MANUAL OF COMMON LAW FOR PRACTITIONERS AND STUDENTS, within seven days after any allotment to make a return to the
FUNDAMENTAL PRINCIPLES, WITH USEFUL registrar stating (inter alia) “the number and amount of shares
PRACTICAL RULES AND DECISIONS. By JOSIAH W. SMITH, B.C.L., allotted as fully or partly paid up otherwise than in cash, and in Q.C. ELEVENTH EDITION. By CUTHBERT SPURLING, Barristerthe latter case the extent to which they are so paid up, and in at-Law. Stevens & Sons (Limited). either case the consideration for which such shares have been allotted."
This work has long been a favourite text-book with law students, The Incorporated Law Society's Bill requires only a state- to whom it still primarily appeals. Founded upon a number of ment of the fact that the shares are issued as fully paid up standard works, it comprises a great deal of information, specially and does not call for a statement of the consideration. valuable to students preparing for examinations, or endeavouring to If the Bill can be got through in this form it will be an fit themselves for either branch of the profession. In the present advantage, for the statement of the consideration is sometimes edition the somewhat elaborate arrangement of the contents of the a matter of difficulty, and the requirement of such statement still work previously adopted has been abandoned in favour of a more renders possible the contention that the consideration has not under the two great divisions of Torts and Contracts. There are
That is to say, the various topics are now dealt with been properly set forth. The really important matter is to know altogether three parts, each of which is sub-divided into appropriate whether the shares have been paid up in cash or no, and practical titles, while nearly each title comprises two or more chapters. convenience points to the acceptance of the proposal of the The subjects of Guardian and Ward, Parent and Child, Divorce, Incorporated Law Society. But the form of the measure in and the old forms of action, are, in the present edition, kept within this respect is less material than to secure in some way the parrow limits. On the other hand, numerous additions to the work repeal of section 25, and the Government will give a useful have been found necessary, especially in connection with the law of indication of their desire for the reform of company law if they embodies the
provisions of the sale of Goods Act, 1893 (56 & 57 Vict.
We notice, too, that the chapter on Sale of Goods, which secure facilities for getting this urgently-needed measure passed.
c. 71), has been entirely rewritten, while a new chapter on Corporations has been added, and the chapter on Evidence has been enlarged. Many new statutes and cases concerning the various topics
dealt with have been inserted, though we do not find any REVIEWS.
reference made to the following recent cases—namely, Pearce QUARTER SESSIONS.
v. Gardner (45 W. R. 518; 1897, 1 Q. B. 688 C. A.); ARCHBOLD'S PRACTICE OF THE COURT OF QUARTER SESSIONS, AND (45 W. R. 628 ; 1897, 2 Ch. 181), Bank of Australasia v. Palmer
Plant v. Bourne (1897, 2 Ch. 281 C. A.); Re Macdonald, Dick v. Fraser ITS CIVIL, CRIMINAL, AND APPELLATE JURISDICTION; WITH (1897, A. C. 540), Simpson v. Hughes (45 W. R. 221). At p. 394 of TABLES OF ALLOWANCES TO WITNESSES, Costs oF APPEAL, PRO- tha work, the editor cites section 4 of the Mercantile Law AmendCEDURE ON APPEALS, AND OF THE PRINCIPAL INDICTABLE OFFENCES ment Act, 1856 (19 & 20 Vict. c. 97), as though it were still operative, TRIABLE AT QUARTER SESSIONS. FIFTH EDITION, THOROUGHLY whereas it has been repealed by the Partnership Act, 1890 (53 & 54 REVISED AND IN MANY PARTS REWRITTEN. By Sir G. SHERSTON Vict.
39), and is now replaced by section 18 of the last-named BAKER, Bart., Barrister-at-Law. Shaw & Sons; Butterworth & Act. In a work mainly intended for students (as this is) such errors Co.
should be avoided. Speaking generally, however, the editor has A new edition of this standard work should prove acceptable to the exhibited great care and discernment in the accomplishment of his profession, especially as since the publication of the last previous task. edition the long interval of thirteen years has elapsed, during which There is only one appendix we are glad to observe, which consists of many, important decisions have been given and enactments passed two statutes-namely, the Employers' Liability Act, 1880 (43 & 44 affecting the subject-matter. The editor of the present edition is to Vict. c. 42), and the Workmen's Compensation Act, 1897, (60 & 61 be congratulated on having reduced the bulk of the work from 1005 Vict. c. 37). An index of over fifty pages has been added, giving
ready access to the contents of the volume. We think it would be a decided improvement to substitute a table of statutes, prefixed to
CASES OF THE WEEK. the text, for the long title, “ Statutes Referred to," now contained in the index.
Court of Appeal.
PAGET v. PAGET. No. 2, 22nd and 25th February; 1st and 24th BOOKS RECEIVED.
March. Outlines of the Law of Torts. By RICHARD RINGWOOD, Esq., MARRIED WOMAN-SEPARATE PROPERTY-RESTRAINT ON ANTICIPATIONM.A., Barrister-at-Law. Third Edition. Stevens & Haynes.
REMOVAL OF RESTRAINT-CHARGE FOR PAYMENTS OF HUSBAND'S DEBTI –
WIFE'S RIGHT TO BE INDEMNIFIED BY HUSBAND, WHERE NO SUCH RIGHT The . Law Relating to Electric Lighting. By JOHN SHIRESS
EXPRESSLY RESERVED-CONVEYANCING AND LAW OF PROPERTY ACT, 1881 WILL, Q.C. Butterworth & Co.
(44 & 45 VICT. 0. 41), s. 39. The Law and Practice Relating to Workmen's Compensation and
This was an appeal by Mrs. Paget, the plaintiff in the action, from a Employers' Liability, being a Practical Guide to the Employers' decision of Kekewich, J. (reported ante, p: 67, and 46 W. R. 232). At the Liability Act, 1880, the Workmen's Compensation Act, 1897, the date of her marriage with the defendant, in January, 1877, the plaintiff was Material Sections of the Factory and Workshop Acts, 1878 to 1895, entitled, under the will of her grandfather, to receive for her sole and and Lord Campbell's Act. By W. ELLIS HILL, M.A., Barrister-at- separate use, and without power of anticipation, the net residue of the Law. Waterlow & Sons (Limited).
annual income of a moiety of certain freehold land consisting of warehouse Gibson and Weldon's Student's Statute Law, being Specially the marriage secured to the defendant an annual income of £2,000 out of the
property in Manchester, and of a sum of £100,000. The settlement made on Intended for the Use of Candidates at the Final and Honours property brought into settlement by the plaintiff. The defendant and the Examinations of the Law Society. Third Edition. By the Authors. plaintiff lived extravagantly and got into debt, and it became necessary to The “ Law Notes” Publishing Offices.
raise large sums of money to avert bankruptcy proceedings against the The Judicial Trustees Act, 1896 (59 & 60 Vict. c. 35), and the Rules defendant. Application under section 39 of the Conveyancing and Law of Made Thereunder. A Short Explanatory and Critical Handbook for Property Act, 1881, was accordingly made to the Court; and two orders, Professional and other Readers. By a Solicitor. Effingham Wilson. made by Chitty, J., whereby it was ordered that the plaintiff's life interest
dated respectively 28th June, 1882, and the 11th of August, 1887, were Price 28. 6d.
under her grandfather's will should, notwithstanding the restraint on antici. pation, be charged for the purpose of raising two sums of £23,000 and £22,000.
These sums were expended in freeing the defendant of debt. Afterwards the CORRESPONDENCE.
defendant and the plaintiff separated, and ever since May, 1893, they had THE INCORPORATED LAW SOCIETY AND LEGAL
been living apart. In the present action, the plaintiff, who sued in respect EDUCATION.
of her separate estate, claimed a declaration that the defendant was liable to
indemnify her against the two mortgages for the sums of £23,000 and [To the Editor of the Solicitors' Journal.]
£22,000 already mentioned. Kekewich, J., proceeding to a great extent Sir, - The Lord Chief Justice is reported to have said at Birming-upon the fact that the orders of the 28th of June, 1882, and the 11th of bam, at the annual dinner of the Birmingham Law Students' Society, August, 1887, did not reserve to the plaintiff any such right of indemnity, in speaking of legal education, "In London at one time the Incor- reserved judgment of the Court of Appeal was delivered on the 24th
The plaintiff appealed, and the porated Law Society had a number of lecturers who had classes, of March. more or less considerably attended, and periodical examinations in
THE COURT (LINDLEY, M.R., and RIGBY and VAUGHAN WILLIAMS, L.JJ.), relation to the teaching of those classes. All that was done away dismissed the appeal. with, and absolutely the education which led up to the final examina- LINDLEY, M.R., read the judgment of the Court as follows : This is an tion of those who desired to become solicitors of the Supreme Court appeal by the plaintiff, Mrs. Paget, against a judgment of Mr. Justice was, as regarded London, and in the main the rest of the country, Kekewich dismissing an action brought by her against the defendant, her carried on by a system of cramming, and not by a system of liberal husband. The object of the action was to obtain a declaration that the and enlightened study, instruction, and education.”
plaintiff's husband was liable to indemnify her against two charges for The lectures referred to were many years ago well attended, but £23,000 and £22,000 created by her on her separate property for the pay; the attendance fell off almost to vanishing point, and the Council ment of his debts. The case is reported in (1898) 1 Ch., 47. The material naturally thought it a waste of money to continue the old system. It is sufficient to state that Mr. and Mrs. Paget were married in January,
facts are there set out, and it is unnecessary to repeat them at length here. Accordingly the present system was adopted as a tentative measure.
1877. The husband was entitled to some reversionary, property. His It is not, as is suggested in the Lord Chief Justice's speech,
interest in this property was settled on the marriage, but this property prosystem of cramming.' It was intended to be (to use his lordship's duced no income to him. The wife was a lady of fortune, and the bulk of expression)" a system of liberal and enlightened study, instruction, her property was settled on her for her life for her separate use without and education.”. The idea was that as soon as a young man was power of anticipation. The sum of £2,000 a-year derived from her property articled he should, with the assistance of a tator, commence a regular was, however, settled on her husband for life, but so that if he attempted to course of reading, and that he should be questioned at short intervals alienate it, or if he became bankrupt, this annuity became payable to his on what he had read, and that he should be prepared, without any wife. The other provisions of the settlement need not be referred to. The cramming, for the examinations he has to pass.
husband and wife moved in good society and, large as their income was, One circumstance which retards the progress of the experiment is they lived far beyond it. So recklessly extravagant were they that five that many men will not read until compelled to do so, and the them from the pressure of debts for which the husband was legally assistance of the professional “coach” is invoked at the last moment. liatle, but which debts had been contracted to defray the expenses
Another difficulty is that the largest number of men entering the of the extravagant mode of living which they both apparently solicitor branch of the legal profession are articled in the country, enjoyed. It is impossible, in our opinion, to read the evidence in and they cannot during the whole of their articles attend classes in the case without coming to the above conclusion. The affidavits filed London. The Council have endeavoured to supply their wants by a in support of the plaintiff's application in June, 1882, for the system of postal instruction, which a most eminent instructor at one order to which we will refer presently, leave no doubt, in our minds, that of our universities adopted with success, and I have a strong convic- these debts had been contracted not for the purposes of the husband with tion that if articled clerks would avail themselves of this opportunity wbich the wife had little to do, but in order to enable them both to live in of being taught, then with the knowledge they should
acquire in the the style they both thought suitable and perhaps necessary to enable them office they would become really educated solicitors, and would pass desired. We attach more importance to what the wife said in these affidavits
to maintain and enjoy that high social position which thoy both so greatly their examinations without having recourse to the pernicious system than we do to what she said some fifteen years later when examined in this of cramming,
action and when she was endeavouring to support her present claim. In the 64, Lincoln's-inn-fields, London, W.C., March 29,
affidavits sworn by her and her solicitor in 1882 there is nothing to lead to the inference that any of the debts which then had to be met were incurred
by her husband for purposes of his own as distinguished from the purposes A clever piece of mensural cross-examination was effected at a Parlia- of himself and his wife as already stated. In her affidavit of Juno, mentary committee on Tuesday, says the Daily Telegraph, by the Duke of 1882, the plaintiff referred to the debts as contracted by her husband Richmond and Gordon, who is presiding over an inquiry respecting a Bill. and herself as Tour debts." It is true she said that until 1880 One of the counsel engaged was Mr. Lewis Çoward, who is exceedingly her attention was not called to the fact that she and her husband tall in stature. His exact height has hitherto been a subject of much were getting into difficulties ; but her affidavit shows that after she knew speculation in committee rooms, and many bets have been made respect of those difficulties all that she really cared about was to increase the net iog it. During an interval in the proceedings, when the official reporter income of herself and her husband, and to maintain their position in society. was not on duty, the venerable chairman, having apparently made an Her solicitor's affidavit leads to the same conclusion. On June 28th, 1882, effort to take the learned counsel's measure with his eye, and being, per- the plaintiff applied for and obtained an order under section 39 of the Conbaps, anxious to know how nearly he had hit the mark, observed, in veyancing Act, 1881, enabling her to mortgage her life interest to secure almost apologetic tones, "Mr. Coward, may I ask you how tall you are?" £23,000 and interest and the premiums of a policy on her life. We do not "Six feet six, your Grace," promptly replied the counsel. "In your
think it necessary to refer in detail to the arrangements made for raising this boots ?”' further inquired the Duke. No, your Grace," was the answer, sum, nor to its application when raised. It is sufficient to say that the money "out of my boots."
was raised as authorised by the order, and, except as to £3,600, was applied
in paying the debts intended to be paid off by its means. The £3,600 not so herself as pressed by her creditors, and we see no reason to doubt the applied was misappropriated by the solicitor who raised the money. Five truth of her statements. The plaintiff was as extravagant and reckless years afterwards another eum of £22,000 was wanted for similar purposes. as her husband, and was quite as desirous as he of maintaining her position Another application was made to the Court, supported by further affidavits in society. This object, so dear to both of them, might have been entirely by the plaintiff and her then solicitor, and on August 11th, 1887, another frustrated if she had the right against him which she now asserts. That order was made enabling the plaintiff to mortgage her life interest for right would, in point of law, have been her separate estate, and she might £22,000 and interest, and for the premiums on another policy. This sum under pressure have assigned it, and her assignee might have enfurced it was accordingly raised, and applied as authorised by the order. The against her husbard whether she liked it or not. She had plenty of debts plaintiff's affidavit, filed on this occasion - July 28th, 1887 — referred to enforceable against any separate estate she had or might have, besides what had been done in 1882, and to the misappropriation of £3,600, income which she could not anticipate. Those circumstances, and the and to the fact that debts had been contracted to pay off the creditors peculiar position of her husband with respect to his £2,000 a year, lead us to who ought to have been paid off with that sum, and to the impossibility of the conclusion that no inference ought in this case to be drawn in her avoiding bankruptcy and loss of social position if the arrangements then favour of any right to be indemdified by her husband. This conclusion is contemplated were not carried out. The plaintiff stated her desire to raise arrived at apart from the orders of the Court to wbich Kekewich, J., this sum of £22,000, and she spoke of the debts as “our debts" as she had attached so much importance, and the effect of which we will now consider. done in 1882. She represented the debts to be hers quite as much as her They are based on section 39 of the Conveyancing Act, 1881. [His Lordsbip husband's, and she treated his income and hers as one which it was desirable read it and continued.] Unless the wording of the section is attended to, to maintain as far as possible. These transactions of 1882 and 1887 having there is danger of regarding the section merely authorising been completed, the question arises whether Mrs. Paget is entitled to be the Court to
the restraint against alienation which is indemnified by her husband against these sums of £23,000 and £22,000 when so frequently imposed on married women when property is settled called in, and in the meantime against the interest and premiums charged on on them for their separate use. But it is to be observed that her life interest by the above orders. The fact that the plaintiff and her what binds the esta'e of a married woman is not what she does when husband were separated in 1893 explains how this controversy has arisen, the restraint is removed, but the order made by the Court. The language but does not, in our opinion, affect the question of law which has to be cons of the section is that the Court may, by judgment or order, bind her sidered. The plaintiff's rights, whatever they are, were not created in 1893, interest. The Court is empowered to do this where it appears to the Court but arose in 1882 and 1887, although she might not care to enforce them for her benefit so to do, and with ber consent. A question at once arises whilst she and her husband lived bappily together. What, then, were her whether the doctrine which is applicable to charges created by a wife to pay rights in 1882 and 1887? In this action she has given evidence and has her busband's debts is to be applied to charges created not by her, but by stated that nothing was ever said about her giving anything to her an order of the Court. The learned Judge in the Court below has held that husband, that he managed all her affairs, and she did not understand them the doctrine in question has no application to such a case, and that where and did not want to do so; that in making her former affidavit in 1882 orders are obtained under that section charging her property with money to she ought not to have used such expressions as "our debts” and “my be applied in paying her husband's debts the order should show on the face debts"; that she herself was not living beyond her income; that some of the of it that her husband is to be liablo to indemnify her if he is to be under any debts which had to be paid were not for money spent for her and her such liability. It certainly might be convenient if such orders were so husband's joint benefit. But when pressed on this point it seems tolerably drawn as to how what was intended in this respect. But these orders are plain that there is no reason for saying that the statement contained in her usually made without hearing the husband, and we are not prepared to say, affidavit of 1882 did not disclose the true state of things, and ought not now as a matter of law, that an order silent as to the wife's rights agaiost her to be believed, although she evidently wishes to minimise the effect of it. husband is fatal to the existence of such rights. The circumstanc-s under What she now says, however, is that all she knew was that her husband was which the order was made might show that a right on her part to be indemin danger of being made bankrupt, and that she wished to save him from nified by her husband ought to be inferred, although the order did not allude to such a disaster. Her attempt to dissociate herself from her husband's it. The absence of all allusion to such right is, however, a circumstance to be racing debts was not successful. As regards the transaction of 1887, she considered, and in this particular case the form of the orders of 1882 and admitted that the financial situation which needed treatment then was very 1887 tells against the plaintiff when regard is had to the statements made by much the same as in 1882, and arose from the same cause. She also stated her in order to obtain them. It was urged that it could not be for her that in 1887 her husband was in America, and that Chitty, J., who made both benefit that she should be deprived of her right to indemnity, but the force orders, saw her in his private room, and was told by her how these new of this observation depends on the tacit assumption that she had the right. difficulties had arisen, what the debts were, what the money was wanted The question comes back to the proper inference to be drawn from all the for, and so on. The learned Judge was, no doubt, greatly influenced | facts, including the orders themselves. And bearing in mind that the on both occasions by her own statements as to her own indebtedness. plaintiff's paramount object was to save her and her husband's joint income, Bearing in mind this evidence, we have to consider the effect in equity and thus, as far as possible, to preserve her and his position in society, and of the transactions in 1882 and 1887, to which we have alluded. The that this object might have been defeated if she reserved a right to be authorities bearing on the subject, beginning with Huntingdon v. Huntingdon indemnified by him, the proper inference to be drawn is, in our opinion, (2. Wh. and Tud., 915), and coming down to Hudson v. Carmichael adverse to the evidence of such right. In our opinion, therefore, the appeal Kay, 613), show that if a married woman charges her property fails, and must be dismissed with costs.--COUNSEL, Renshaw, Q.C., and 4. with money for the purpose of paying her husband's debts, and the money à Beckett Terrell; Cozens-Hardy, Q.C., Warrington, Q.C., and John Henraised by her is so applied, she is prima facie regarded in equity, and as derson. SOLICITORS, Leman f. Co.; Dawes & Sons. between herself and him, as lending him and not giving him the money
[Reported by R. C. MACKENZIE, Barrister-at-Law. raised on her property, and as entitled to have her property exonerated by him from the charge she has created. This doctrine is purely equitable, and the authorities which establish it show that it is based on an inference to be drawn from the circumstances of each particular case; the prima facie inference being in such a case as that supposed that both parties intended
High Court-Chancery Division. that the wife's assistance should be limited to the necessity of the case, and should not go beyond such necessity. But even where the wife charges her
Re GIBBS, THORNE v. GIBBS. Stirling, J. 24th March. property with money to pay her husband's debts incurred without reference REVENUE--SETTLEMENT ESTATE DUTY-INCIDENCE-FINANCE Acr, 1896 (59 to her, there may be circumstances which prevent any inference from arising
& 60 Vict. c. 28), WHETHER RETROSPECTIVE. in her favour. Thus, if a settlement is made by the husband on his wife at the time she charges her estate he is regarded
as purchasing her assistance; imposed by the Finance Act of 1894 was, in the case of property gettle 1
This case raised a question as to whether the settlement estate duty and the inference that the parties intended that the wife's property should by the will of a person who died after the commencement of the Finance be exonerated by the husband does not arise (see Lewis v. Nangle,
Amb., 150). Xct, 1894, but before the commencement of the Finance Act, 1896, pay. Clinton v. Hooper (1 Ves. J., 173, and 3 Bro. Č.C., 201) is the leading authority able out of the settled property or out of the general residue of the testato show that the doctrine in question is based on an inference to be drawn in each tor's estate. The question arose under the following circumstances. By case from all the facts of that particular case. although under the old law a husband became liable for the anti-nuptial section 5 of the Act of 1894 it is enacted (1) that where property in debts of the wife, she had no right in equity to compel him to exonerate respect of which estate duty is leviable is eettled by the will of the property of hers charged with those debts, even although he had expressly that disposition on the death of the deceased to some person not competent
deceased, or, having been settled by some other disposition, pasees under covenanted to pay them; see Lewis v. Nangle (ubi supra) and Earl of to dispose of the property, a further estate duty (called settlement estate Kinnoull v. Money (3 Sw., 202n.); This shows the importance of not con- duty) on the principal value of the settled property shall be levied, By founding the wife's debts with the husband's debts when considering such section 22 (1) (a) of the same Act the expressions
“i deceased person” and cases as those to which I am alluding. To say that in all such cases there is a presumption in favour of the wife, and that it is for the husband to rebut it, part of that Act. The said sections 5 and 22 are both comprised in Part
“the deceased” mean a person dying after the commencement of that is, in our opinion, to go too far and to use language calculated to mislead.
I. of the
defined the commencement of ference ought to be drawn; and until an inference in favour of the wife Part I. of that Act. On the 26th of arch, 1896, it was decided arises there is no presumption or the husband to rebut. If this is forgotten; by North, J., in Re Webber (44 W. R. 489; 1896, 1 Ch. 914) that in the error may creep in. The circumstances here we take to be those disclosed
case of a testator who died on the 7th of March, 1895, the settlement by the plaintiff in her affidavits, especially her representations of her own indebtedness, as well as of her husband's; and we will add to these her the testator ought to be borne and paid out of the general residue of his
estate duty payable in respect of peraonal property settled by the will of recent statement that nothing was ever said about giviog anything to her estate and not out of the settled property. On the 7th of August, 1896, husband. Neither was anything said about lending him anything. She had the Finance Act, 1896,
was passed. Part IV. of such Act comprises sections a large income, and, although restrained from anticipation,
she might have 14 to 24, both incluzive; and by section 19 it is enacted (1) that the accrued income in respect of which she could contract debts. There is no reason
settlement estate duty leviable in respect of a legacy or other personal to suppose that she had no debts and could contract n no. She represented
property ret'led by the will of the deceased shall (unless the will contains