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The Solicitors' Journal and Reporter.
ROYAL EXCHANGE ASSURANCE.
VOL. XLII., No. 37.
LONDON, JULY 16, 1898.
The Editor cannot undertake to return rejected contributions, aud
the regular staff of the JOURNAL.
E. R. HANDCOCK, Secretary. THE OLDEST & WEALTHIEST EXISTING MORTGAGE INSURANCE OFFICE.
Contents. THE LAW GUARANTEE AND TRUST SOCIETY,
REVIEWS ............................................. 652
652 SUBSCRIBED CAPITAL
£100,000. £1,000,000. PAID-UP
657 Options to PURCHASE IN LEASES AND LEGAL NEWS
658 FIDELITY GUARANTEES OF ALL KINDS. ADMINISTRATION AND LUNACY
THE RULE AGAINST PERPETUITIES ... 650 COURT PAPERS................................... 658 BONDS. MORTGAGE, DEBENTURE, LICENSE, AND CONTINGENCY Tye LAND TRANSFER RULES
650 WIXDING UP NOTIORS ........................
659 INSURANCE. TRUSTEESHIPS FOR DEBENTURE-HOLDERS, &c.
THE LATE MR. EDWARD LEE Row
661 HEAD OFFICE: 49, Chancery-lane, W.C. | CITY OFFICE: 56, Moorgate-street, E.C. IMPORTANT TO SOLICITORS
Cases Reported this Week.
In the Solicitors' Journal. Southwark and Vauxhall Water Co. v.
The Wandsworth District Board of
655 Atlas Metal Co. v. Miller and Others... 653 LOSS OR FORFEITURE OF THE LICENSR.
Strangwayes y, Read
Calcott and Elvin's Contract, Re..., 653 Suitable clauses, settled by Counsel, can be obtained on application to
Felix Hadley & Co. (Lim.) v. Felix
In the Weekly Reportor. THE LICENSES INSURANCE CORPORATION AND Hadley
655 Clegg v. Ellison....
577 Kennaird (Appellant) v. Cory & Son Leicester County Council v. Leicester GUARANTEE FUND, LIMITED,
585 24, MOORGATE STREET, LONDON, E.C.
Lund v. Liverpool School for Indigent Liquidation Estates Purchase Co. v.
Willoughby and Others Mortgages Guaranteed on Licensed Properties promptly, without
Mayor, &c., of Liverpool v The Assess Marshall v. Mackintosh
590 special valuation and at low rates.
ment Committee of the Llanfyllin North-Eastern Railway Co. (Appellant) Union and Others
656 v. Overseers of Dalton (Respondents) 582 Ratcliff, Re
654 “Ripon City" or “Silvia," The ALLIANCE ASSURANCE COMPANY.
Established 1824. Capital, £5,000,000 Sterling.
WE ARE GLAD to observe that the Companies Act, 1867,
Amendinent (No. 2) Bill, promoted by the Council of the Incor-
LEASEHOLD AND SINKING FUND POLICIES.
Commons on Wednesday, and we trust it may now be con
sidered safe to pass into law. The Bill has not, we believe, LEGAL AND GENERAL LIFE ASSURANCE been reprinted since it was altered; but we understand that its SOCIETY.
object is to facilitate the filing of proper contracts in respect of fully paid-up shares, in place of defective contracts already filed.
IN THE COURSE of the hearing on Wednesday of a trade-mark FUNDS
c180, the Master of the Rolls said he wished it to be generally
known by solicitors that a copy of a judge's notes of vivá voce INCOME
£ 390,000 evidence taken before him should be applied for at a reasonable YEARLY BUSINESS
£1,000,000 time before the hearing of an appeal, so that the judge's clerk BUSINESS IN FORCE
£ 11,700,000 might have time to make the copy. The application was often
postponed to the last moment, and there was not time to make THE PERFECTED SYSTEM of Life Assurance is peculiar to this Society a copy before the hearing of the appeal. The original notes and embraces every modern advantage.
were not always easy to read. PERFECTED MAXIMUM POLICIES.
WE REFERRED last week to the suggestions of the IncorporWITHOUT PROFIT8.
ated Law Society with regard to service in Scotland. The caso The Rates for these Whole Life Policies are very moderate.
presented in the committee's report constitutes an unanswerable
plea for equal rights on behalf of the English litigant. It may Age | Premium Age | Premium Age Premium
appear to be a work of supererogation to attempt to add to the
strength of that plea, but we hope that in any communications 20 £1 7 8 % 30 £1 16 % | 40
£2 10 %
which may piss on this subject the important case of Wood v.
Middleton (45 W. R. 184; L. R, 1897, 1 Ch. 151) will not be £1,000 POLICY WITH BONUSES
overlooked. In that case an action was commenced by summons According to last results.
in the county court of Cumberland against a defendant resident
in Scotland. Ord. 51, r. 23, of the County Court Rules, 1889, is Valuation at 24 p.c. :-Hm. Table of Mortality.
in the following terms :
" Where a defendant sued under section 67 of the Act shall be out Duration
of England or Wales, the judge, or in his absence the registrar, may Amount of Policy £1,199 $1,438 £1,724
upon an affidavit of the fact, direct the service of the summons to be £2,067
effected within such time and in such manner as the judge or
registrar may think fit.” Next Bonus as at 31st December, 1901.
In accordance with the terms of this rule the registrar gave
leave to serve the defendant in Scotland, which was done. The OFFICES : 10, FLEET STREET, LONDON. action was afterwards removed into the High Court, and the
question of jurisdiction was argued before STIRLING, J. The work whereby they are earned. The result, as the Master of the learned judge bold that the above county court rule was valid, Rolls in the present case observed, is hard upon the solicitor, and within the power of the rule-making authority to make; but it follows too clearly from legal principle to be gainsaid. that the service effected was therefore good service, and that had the action remained in the county court the jurisdiction could not have been objected to. But it had transpired that the
THE REPORT of the Legal Procedure Committee of the Iacorsubject matter of the action exceeded the jurisdiction of the porated Law Society, to which we referred last week, deals also county court, and the registrar therefore transferred it to the with the Land Charges Bill, which has now passed the House High Court, as he was bound to do. The question, therefore, of Lords. The Bill, as we have already pointed out, substitutas resolved itself into whether the High Court had jurisdiction, for the writ of elegit a system of charging orders under which and the judge held that if the action had been commenced in the execution creditor will have the power of realizing the the High Court, there would have been no jurisdiction to order debtor's lands as though he were mortgagee. It is contemservice in Scotland, and consequently that, although the county plated, apparently, that the judgment creditor shall be entitled court would have had jurisdiction if it had remained a county to a charging order as a matter of right, but no provision is court action, the High Court could not acquire any similar made for such an order being made ex parte ; and since, as the jurisdiction by the mere fact of the transfer of the action from report points out, a summons after judgment requires to be the county court to the High Court.
served on the debtor personally, the creditor will be powerless to get his charging order if the debtor chooses to eludo service.
The creditor would thus be in a worse position than under the the absurdity and injustice of the existing state of affairs as to interest of the debtor in land, whereas certain interests are not
The above caso appears to us to throw a striking light upon existing practice as to elegit. On the other hand, the Bill assists service of English process in Scotland. The county court has assumed for years past a free right to serve its process in extendible under an elegit. The second clause of the Bill omScotland, and this right is also freely assumed by both the powers the Lord Chancellor to provide for the removal of the Cuurt of Session and the lower courts in Scotland. The enact
business conducted in the Registry of Judgments Department of trents conferring this right upon the Scottish courts will be the Central Office to the Office of Land Rögistry. This naturally found in a previous article on this subject (vol. 41, p. 184). meets with the approval of the committee, for some registers Notwithstanding all this, the High Court in England' is denied are already kept at the Land Registry, and it is obvious that all the right to serve an originating summons or petition in Scot- the registers which a purchaser of land may require to search land, and its power to order service of a writ of summons is ought to be collected at the same office. The committee further hedged round by all manner of restrictions which are unknown urge that contracts with corporations, which under Local Imto the Scottish courts or even our own county courts. Another provement Acts are binding upon land and have to be registered fact which makes the present state of affairs even more absurd with the town clerk, ought also to be registered at the Central is that, as long ago as 1891, the Rules of the Supreme Court Office. Of course such local registration should never have been (Ireland) came into force, and ord. 11, r. 10, of those rules allowed unless accompanied also by central registration, but the provides that " The rules of this order (service out of the precedent has been set and the Legislature continues to allow jurisdiction) shall apply to originating summouses and petitions
of the multiplication of local registers to the great trouble and and other originating proceedings." These facts speak for expense of purchasers. themselves. They show that the powers assumed by the Irish courts and by the Eoglish county courts were properly assumed, and that they have never met with any objection from the
AN ATTEMPT was made in Groves v. Lord Wimborne (ante, p. Scottish courts. And they show that the only person who is 633) to upset the settled doctrine that an action will lie at the shut out from participation in these reciprocal rights to serva suit of a workman against his employer for injury cuused by originating process of all kinds out of the jurisdiction, but the employer's failure to perform his statutory duty of fencing within the United Kingdom, is the English litigant in the dangerous machinery under section 5 of the Factory Act, 1878. English High Court. Why this state of affairs should have For any such default the employer is liable to a penalty under continued so long soems to us inexplicable.
the Act, and hence, it was urged, he is exempted from being at the same time liable to an action. But the argument, which is opposed to a long series of decisions, was rejected by the Court
of Appeal. In Coe v. Platt (7 Ex. 460), which was upon the The Court of Appeal have, as might have been expected, Act 7 & 8 Vict. c. 15, the plaintiff failed on another ground, but affirmed (ante, p. 635) the recent decision of KEKEWICH, J., in it was not doubted that, could he have proved the neglect of the Re White, Pennell v. Franklin (46 W. R. 247). A testator, who statutory duty, he would have been entitled to recover. Holmes died in 1891, appointed three persons as trustees and executors v. Clarke (6 H. & N. 349) and Britton v. Great Western Cotton of his will. One of them was a solicitor, and he was expressly Co. (L. R. 7 Ex. 130) are both direct decisions that the action empowered by the will to make professional charges. The will die notwithstanding that the plaintiff goes on working with estate proved insolvent and the will was proved by the solicitor knowledge of the risk he runs, provided he has complained ; alone, who acted professionally in the administration, and then and in Baddeley v. Earl Granville (19 Q. B. D. 423) the proposed to charge his costs against the estate. Unfortunately Divisional Court not only held that the action would lié, but the earlier decisions, including decisions of the Court of Appeal, also, followiog an intimation by the majority of the Court of made it impossible for such a claim to be supported, and it was Appeal in Thomas v. Quartermaine (18 Q. B. D. 685), that rejected by KEKEWICH, J. Apart from the express power in the the maxim volenti non fit injuria was not available to the will, the solicitor would have had no right to make any charge employer by way of defence. In the present case of Groves v. at all, even had the estate been solvent. His right to charge, Lord Wimborne the Court of Appeal have given cogent reasons therefore, sprang from the bounty of the testator, and the why the statutory penalty should not exclude civil liability, money, had he received it, would have come to him as a gift. Under section 82 of the Act of 1878, indeed, the whole or part This is, at least, the legal theory, and on the strength of of the penalty may, at the discretion of the Home Secretary, be it it has been held that a solicitor who attests the will applied for the benefit of the injured person or his family, but debars himself from taking advantage of the provision this is not the same thing as giving him a direct claim for comin question (Re Barber, 34 W. R. 395, 31 Ch. D. 665 ; Ře Pooley, pensation against the employer, nor does it follow that the 37 W. R. 17, 40 Ch. D. 1); but if the costs, when taken under penalty imposed will bear any proportion to the injury inflicted the provision, are a gift so as to render the solicitor incompetent on the workman. The neglect of the statutory duty may bə as an attesting witness, they are equally a gift or a legacy when venial and yet the consequences severe. The penalty, thereit comes to be a question of paying them out of an insolvent fore, does not correspond to the employer's civil liability to the estate. They cannot rank with the claims of creditors, and the workman, and, in the absence of any indication of such an solicitor must forego them notwithstanding that he has done the intention in the Act, the civil liability is not excluded. As just
stated, the maxim volenti non fit injuria furnishes the employer proprietors of some" bogus club." These so-called clubs are, with no defence to the action; it is now held, further, that he as a rule, houses kept for the purpose of affording persons the cannot set up the defence of common employment. Even opportunity of doing acts which are forbidden by law in places though the omission to fence is immediately due to the negli- of public resort. No doubt the proprietors of such places often gence of a fellow-workman of the plaintiff, yet the employer break the law in many ways, but the charge most frequently cannot delegate to another the performance of his statutory preferred against them is that of selling liquor without a licence. duty, and he remains liable.
Generally the question turns on whether the establishment is a bond fide club or not, and a conviction is obtained upon proof
that there is no difficulty in the way of anyone who chooses WE PRINT elsewhere a well-reasoned letter from a corres- obtaining admission and purchasing liquor. Houses of this pondent, who raises an important point in connection with our description are no doubt a danger to public order and to articles on the Land Transfer Rules. The question at issue morality, and those who keep them deliberately break the law seems capable of being thus stated : A. is the owner of land for their own profit. There are, however, many clubs in London subject a legal mortgage to B., and A. registers ; does the and elsewhere-some of them of the highest possible respectaregistration operate to divest B.'s legal estate and to vest it in bility-in which the licensing laws are, in our opinion, broken A.? Our correspondent submits that it does. It seems to us every day with impunity. The law says that no person shall that the policy of the Land Transfer Acts is to show by the sell by retail any intoxicating liquor without being duly licensed register the person capable of transferring or charging the so to do. But surely this is exactly what the owner of every registered land. All other estates may be created in like proprietary club does ? He sells liquor, presumably at a profit, manner as if the land were unregistered. Thus if a registered and he is not licensed. There are various kinds of clubs, but proprietor conveys his land by unregistered disposition the legal they may probably all be divided into two classes. In the first estate (if vested in him) passes to the grantee subject to be class may be placed all clubs the members of which themselves divested by a registered disposition : see Act of 1875, 8. 49. own the property of the club. In these clubs the members are There is, therefore, nothing incompatible with the scheme of the joint owners of the society's property, and the committee, Acts in B.'s retaining the legal estate. B.'s estate is an incum-managers, or trustees are their agents. Under such circum. brance and will be noted on the register where the registration stances, it was held in Graffy. Evans (30 W. R. 380, 8 Q. B. D. 'is with an absolute title. B. cannot without his consent be given 373) that liquor purchased by the committee for the use of a registered charge in place of his legal mortgage : see rule 118. members, and sold to the members individually as they require Again, the rule referred to in our sixth article, that there cannot it, is not "sold” within the meaning of the Licensing Act. be two common law fees co-existing in the same land is only a In fact it is clear that, as soon as the committee purchase rule of the common law, and may be suspended by force of a the liquor, each member becomes part owner of it, and statute. Moreover, it seems to have been disregarded in the what happens subsequently is merely a convenient method case of a long term enlarged into a fee simple ander section 65 of distributing the liquor amongst persons who already are its of the Conveyancing and Law of Property Act, 1881. Of course owners, and who themselves alone profit by the transaction. In we admit that the common law courts will take cognizance of the second class of clubs may be placed all those in which memthe statutory fee for the purposes of the Act, but the question bership is not co-extensive with ownership, in fact all proprietary is, what is the value of that estate for the purposes of un- clubs. Sometimes these are kept by one person, or by several registered dealings? Is the old common law fee merged therein in partnership. Sometimes they are the property of a limited or not?
Assuming that where land is registered with an company. In these the members, as such, do not own the goods absolute title (the prior incumbrance having been discharged of the club, and membership and ownership are quite distinct. but the legal estate not reconveyed) a registered transfer for The proprietor buys the liquor and does, in the ordinary sense, value by the registered proprietor will, as we think it does, pass sell it again to the members; and the profit, if any, from the the legal estate to the purchaser; thus, as regards absolute titles, transaction goes into his pocket. Such societies are no doubt the point is not of great importance, inasmuch as the registered perfectly bond fide clubs, but, none the less, it is submitted, the proprietor, so long as he is in possession, will have the usual proprietor infringes the licensing laws. In Bowyer v. The Percy mortgagor's power to lease. In the case of possessory titles, Supper Club (Limited) (42 W. Ř. 29,  2 Q. B. 154) the however, the point is of considerable importance, and seems to club in question was owned by a limited company, and the us to depend on the construction of section 8 of the Act of 1875, High Court held that the company was liable to conviction for which, as we pointed out (ante, pp. 505-6), may be read in two selling to members without being licensed. MATHEW, J., went waye, and we stated that it would not be safe to act on the view so far as to say that he was wholly unable to see any distinction that, on mere payment off of the incumbrance paramount to the between a case of that sort and the case of a friendly society estate conferred by registration, the legal estate vested in the arranging with the landlord of a public-house that they should proprietor without reconveyance. It will thus appear that the have the use of a room on certain occasions and be supplied by articles are not based on the assumption that the statutory estate him with liquor. The question of proprietary clubs does not is not the legal estate, but that in practice it will not be safe to seem to have yet been thoroughly gone into; but, when they assume that it is. Our correspondent thinks that his view is do receive the attention of the court, it will probably be held confirmed by rule 97, which provides for the case of a registered that whenever liquor is sold by the proprietor for his own proprietor refusing to execute a transfer on a sale by a legal benefit a licence is necessary, and that it is immaterial whether mortgagee under a mortgage made prior to first registration. the proprietor is a company, a firm, or an individual. We contend, however, that in the case of a possessory title an exercise of such a mortgagee's power of sale operates to remove the land from the register unless the purchaser is willing to
THE DECISION of the House of Lords in Lord Wolverton v. The adopt the registration and take a transfer under rule 97 : see Attorney-General, reversing that of the Court of Appeal (1897, 1 Re Winter (L. R. 15 Eq. 156) and ante, p. 551. In a compulsory Q. B. 231), will be received with satisfaction by the legal prodistrict this is immaterial, as the purchaser would have to re- fession. register. As regards our correspondent's contention that his WOLVERTON to pay succession duty on the value of an annuity
The question was as to the liability of the fourth Baron view is supported by the fact that a purchaser can be registered of £15,000 to which he became entitled under the trusts of a without taking a conveyance, we have already pointed out (ante, deed of family arrangement. The second baron, who died in p. 486) that in the case of a possessory title this would bring 1887, by his will bequeathed certain bank shares upon certain the contract for sale on the title, but undoubtedly if his con- trusts to the third baron during his life, and bequeathed his tention is right the legal estate would pass by the registra- residuary estate in trust for his own wife for life, with remainder tion, which has to be assented to by the vendor, instead of by after her decease to the third baron it then living, and if he conveyance.
should then be dead to the person who should then be the
testator's right her. In 1888 the third baron died without HARDLY A day passes on which we may not read in the police issue in the lifetime of the widow, and the bank shares accordintelligence in the newspapers of proceedings against the ingly fell into the residue. On the death of the third baron five
the expenses of criminal prosecutions in Ireland taken up by the Crown
in Ireland cost $112,000 last year and $107,000 in the year now under
28,000,000 and an enormous crush of business, were only £79,000, while
nieces of the testator were the persons who would, in the event | £5. If for any other reason an occupier refuses to admit the of their surviving the widow, be the co-heiresses of the testator officer of the sanitary authority, the only course for the authority and entitled to the residue.
A deed of arrangement was to take is to apply to a magistrate under the last-mentioned thereupon executed by which the widow, the five nieces, section for a warrant authorizing entry upon the premises, by and the fourth baron assigned to trustees their respective force if necessary. But to obtain this warrant the justice must interests in the residue upon trust (80 far as material) be satisfied that there is reasonable ground for the entry. In to pay during the life of the widow an annuity of £15,000 the recent case the vostry could only put forward as a to the fourth baron during his life, and after the death able ground” the fact that several schools in the district had of the widow "to continue to pay the said annuity of been found to be in a defective sanitary condition. They were £15,000” to the person for the time being holding the title of unable to allege a single fact to raise suspicion that in this Baron WOLVERTON during his life. The annuity was paid to particular case there was any sort of nuisance, and, in the faca the fourth baron until the death of the widow in 1894, and of a statement that a competent sanitary surveyor had certified upon her death succession duty was claimed by the Crown on the arrangements of the school to be perfect, the magistrate the value of the annuity which then began to be payable to failed to see any reasonable ground, and refused his warrant. him. Legacy duty at 3 per cent. had been paid (upon the death Although it is possible this decision may be overruled by the of the widow) upon the whole residue of the testator's estate. High Court, we submit that it is perfectly sound.
The Logis. Byth the Divisional Court (POLLOCK, B., and Bruce, J.) and the lature could never have intended to give a local authority pɔwer Court of Appeal (Lord ESHER, M.R., and Lopes and Rigby, to enter a private house against the will of the owner unless LJJ.) held that the annuity which commenced at the death of some reason existed for suspecting the existence of a state of the widow was not the same annuity as that which was payable things likely to injure the occupants of the house or the public in her lifetime, and also that the arrangement made by the deed in general. If a local authority possessed a power such as was was not a contract for valuable consideration in money or claimed by the St. Pancras Vestry, it might be used in a most money's worth within the meaning of section 17 of the Succes- oppressive and intolerable manner by the over-zealous officers sion Duty Act, 1853, and the House of Lords did not differ of some districts. from this viow. But the Divisional Court appears to have regarded this as leading necessarily to the conclusion that the fourth baron became entitled to the new annuity THE CASE of The Glengyle is a striking example of the expedi. as successor, and that his succession was liable to the duty. tion which is possible in the trial of actions in our courts. In The court seems to have left the other sections of the Act August last The Glengyle, while on a voyage from London to entirely out of consideration. Section 15 was considered by Japan, was run into and very seriously damaged when in the the Court of Appeal, and was held to be inapplicable to the Straits of Gibraltar. By the prompt action of the salvage facts of the case. That section enacts, in effect, that where, steamers Hermes and Newa, and the tugs Hercules and Nellie, before the successor is entitled in possession, his succession The Glengyle was brought into Gibraltar Bay and saved from becomes vested by alienation in any other person, then the duty becoming a total loss. In October the salvors instituted this in respect thereof shall be paid at the same rate and time as it action for salvage, and on the 6th of December Mr. Justice no such alienation had been made or derivative title created. BARNES awarded The Hermes and Nowa £19,000 and the tugo The arrangement under which the fourth baron was entitled to £500. On the 16th of February the Court of Appeal upheld receive the annuity out of the residue which formed the succession the judgment of the Admiralty Court; and on Tuesday last the of the five nieces was not, in the opinion of the Court of Appeal, House of Lords confirmed the decision of the Court of Appeal. an "alienation” to that extent of their succession within the From this it would seem that when litigants desire a speedy section. They therefore thought that the new annuity was to trial, the courts are in nowise backward in gratifying their be regarded as a new succession, and so liable to duty. This desires. view has not been generally approved of, and it has now received its quietus from the House of Lords. The new annuity was created by the five nieces, the successors, out of their own
THE SELDEN Society is about to issue to the members, as succession, and it is a new and a disturbing doctrine to hold volume xii. of its publications, “Select Pleas in the Court of that a successor can cause a now succession to be substituted Requests, A.D. 1487-1569." This book has been edited for the for his own so as to make his alienee liable to pay duty over Society by Mr. I. 8. LEADAM, and contains a careful introduction and above that which is already payable on the original treating of the whole history of this Court, known as “ the succession. Section 15 seems exactly to fit the circumstances Court of Poore Men's Causes," from its establishment under of the present case, with the result that, legacy duty having Henry VII. to its disappearance under the Commonwealth and already been paid on the whole succession, the property is
Restoration. The publication is of unusual interest, as the protected from any claim for succession duty by section 18.
history of the Court has not before been fully investigated. This is the volume for 1898. Volume xiii., for 1899,
of the Forest Eyre Rolls,” by Mr. G. J. TURNER, is already in Tag Vestry of St. Pancras appear to claim the right of municipal records of Lincoln and Beverley, edited by Mr.
the press. Volume xiv., for 1900, will be a selection of the early entering upon any premises in order to inspect the sanitary ARTHUR F. LEACH. arrangements, even though nothing whatever is brought to their knowledge to lead them to suspect the existence of a nuisance. If such a right exists it is a very wide and arbitrary power to be in the hands of any sanitary authority, and in resisting the vestry's claim the North London Collegiate School sum of £107,929 for the Supreme Court of Judicature and other de grande
In the House of Commons, on the 8th inst., on the vote to complete the for Giris has this week raised a question of considerable im- departments in Ireland, Mr. Pillon instituted a comparison between the portance. Section 1 of the Public Health (London) Act, 1891, cost of the judicial establishments in Ireland and those in England and discovery of nuisances, and section 10 gives them the right to the lowest estimate, about twenty times the amount of business, costi on line vision imposing a penalty upon an occupier who refuses ad- irimindan prosecution propose 10 less a sum than £62,000. In additi enero out an order of the justicos, of is rofused with the intention of that he canalogy in this country. Then they had got the County County preventing the discovery of an offence under the Act, or the officers ein trdland, 413,000," whereas in England the sum was de bine section 115 the person refusing is liable to a fine not exceeding the cost of prosecutions were largely borne by the public.
make an affidavit supporting his claim, and to produce it on PROCEDURE IN ACTIONS ON BILLS OF EXCHANGE. issuing his summons, and also to serve a copy of it with The report of the Special Committee of the Incorporated Law the summons. The whole procedure under order 14 rests upon Society on Legal Procedure, which we printed last week (ante, this sworn testimony of the plaintiff that he has a good claim p, 637), contains proposals as to actions on bills of exchange, and the defendant has no defence. No order is made until both which are stated, if we may presume to say so, with more parties are brought face to face before the master (except, of regard to brevity than to clearness. The subject is an im- course, where one fails to attend) and both sides are heard. portant one, and two distinct proposals for amendment of pro- the fundamental difference between procedure under Keating's
It does not appear from the report that the committee realized cedure are put forward in terms which leave us in some Act and under order 14, or that the proposal to revive that Act doubt as to what the committee actually desire. point is that as regards actions on bills of exchange order in the High Court would involve considerable alterations in the 14 is less effective then was the procedure under the Summary rules. In the first place, the universal right of a defendant to Procedure on Bills of Exchange Act, 1855, commonly called enter appearance would have to be qualified by exceptiog actions Keating's Act, but the words of the report leave us in some falling within Keating's Act. In the second place, ord. 3, r. doubt as to whether the committee desire the revival of as to special indorsement of the writ, would have to be amended Keating's Act in High Court procedure, or an alteration of by excluding claims within that Act, because order 14 is based order 14. The passage of the report dealing with this point is upon the defendant's unfettered right to appear and upon the as follows:
special indorsement of the writ; and order 14 could not, as we
have said, be made to operate concurrently with Keating's Act “The committee are of opinion that the process under the Sum in actions on bills of exchange and promissory notes without mary Procedure on Bills of Exchange Act, 1855, was advantageous, and that it has been unduly restricted under order 14. They suggest considerable confusion and inevitable friction. that in actions on bills of exchange and on certain written docu In these circumstances the question arises whether procedure ments, and in other special cases to be prescribed, the plaintiff should under Keating's Act is so much better than that under order be entitled to summary judgment unless the defendant obtains leave to defend. In the alternative, they suggest a rule to be made under 14 that it is worth while embarking on such a reconstruction of order 14, by which the plaintiff in an action on a bill of exchange our rules of summary procedure as the revival of that Act should be entitled immediately after appearance to issue and serve a would involve. If, as the committee say, defendants are able summons under order 14, on the return of which, without other to delay plaintiffs suing on bills of exchange under order 14 evidence in support than the production of the bill, he should be where both parties are before the master at the same ime, entitled to summary judgment unless the defendant shall be then how much more probable is it that they would be able to cause
delay in such cases when they would have the field entirely to We will assume that the first suggestion means the restora- themselves in applying ex parte under Keating's Act for leave tion of Keating's Act in High Court procedure. The
and defend. It is often a hard task now, we admit, report does not actually say this in words, but it can mean for a master to tell what substance there is in a defendant's nothing less, because under the existing procedure a plaintiff is case set up under order 14, and yet he has both parties before already entitled under order 14 to “summary judgment unless him. This difficulty would surely be increased, instead of the defendant obtains leave to defend.” What the report fails diminished, if he were compelled to judge only from the affidavit to make clear is that the "leave to defend” here referred to is of the defendant. We must confess that, in the absence of the “leave to appear and defend” under section 2 of Keating's some stronger reasons than those contained in the report, we Act.
greatly doubt the wisdom of substitutiog Keating's Act for Assuming this reading of the report to be correct, it may be procedure under order 14 in actions on bills of exchange. well to point out that although Keating's Act is one of the
As regards the alternative proposal of the committee, it original provisions out of which order 14 grow, there is a merely amounts to this: That in actions on bills of exchange difference in principle between the two; and that it would be under order 14 the plaintiff should only be required to produce a very difficult thing to graft the principle of Keating's Act on the bill, and not to make an affidavit swearing that the money to procedure under order 14. Nor could it be made part of was owing. We do not think that this is a sound suggestion procedure in the High Court without importing the safeguards either. Order 14 is based upon the plaintiff's sworn proof of provided by the Act. And, moreover, if this were done the the justice of his claim. Take this away from any part of it rules of procedure regulating the right of the defendant to and the summary procedure it establishes would totter. We appear, and the special indorsement, and summary judgment are by no means convinced that it would be desirable in all cases under order 14 would have to be altered so as to entirely take to give summary judgment to the holder of a bill of exchange out of their operation actions on bills of exchange. It would upon the more production of the bill, without having his sworn not be well to have two separate procedures based upon testimony that the defendant was truly and justly indebted to different principles at work concurrently with regard to a par- him for the amount claimed. Nor do we see that the mere ticular kind of action.
exemption of the plaintiff in such actions from the necessity The principle of Keating's Act may be shortly summarized as of verifying his claim would lessen delay. On the contrary, follows: A dishonoured bill of exchange gives the holder a the only effect of doing so would,, in our opinion, be to prima facie right to recover the amount summarily from the cause many more adjournments, which would be rendered defendant, unless the latter can show cause to the contrary, necessary in order to allow time for the plaintiff to answer the The onus of proof therefore is thrown on the defendant. A defendant's affidavit. Moreover, under Keating's Act the court holder of a bill of exchange is allowed to issue a writ in special has special power to impound the bill of exchange sued on, and form prescribed by the Act, which is indorsed with a copy of if the plaintiff in such an action were exempted from verifyiog the bill or note sued on, and which warns the defendant that his claim, a similar power wouid have to be added to those the unless within twelve days he shows good cause why he should court now possesses under order 14. be allowed to enter an appearance, and having obtained leave On the whole we think that in this portion of their report duly enters such appearance, final judgment may be entered and the committee have either said too much, or too little. It execution issued against him. The application for leave to would, in our opinion, be advisable that the committee's appear and defend was made ex parte (Day's Com. Law Proc. suggestions should either go to the Rule Committee with fuller Acts, 4th ed., p. 385). The plaintiff had merely to issue and explanation, or not at all. serve the writ, and on the expiration of the time for appearance to search for appearance, and if none entered, to sign judgment in default.
It is stated that a transfer of 110 Chancery witness actions is in course The principle of order 14 is entirely different. The right of preparation to Mr. Justice Byrne for trial, of which 50 are from the which every defendant has in every action to enter appearance list of Mr. Justice North, 35 are from Mr. Justice Stirling, and 25 are remains unaffected by it. Order 14, in fact, does not commence from Mr. Justice Romer; to operate until appearance is entered, whereupon a plaintiff for Friday, the 29th® inst., at the Inner Temple Hall. After the debate suing by specially-indorsed writ may apply for summary judg- the members of the society will hold their customary reception “to meet ment. But the onus of proof rests upon him. He is bound to l the Lord Chancellor and Her Majesty's Judges."