Page images


Jones was argued this term before the Lord Chief Justice and which broke the continuity of the chain of notice, and WRIGHT, KENNEDY, DARLING, and CHANNELL, JJ. The judg- consequently that her liability as indorser was discharged. ment was delivered orally by the Lord Chief Justice, and in the Under Section 49 of the Bills of Exchange Act, the absence of the other four learned judges. It must, of course, be notice is not in time unless, where the persons giving and taken that all five had discussed the case, and had arrived at receiving the notice reside in different places, it is sent off on unanimity as to what the decision should be. But can a the day after the dishonour of the bill. Hence, if no notice was judgment which the four junior members of the court had sent by the London and Westminster Bank on the 12th, this never heard be taken as the judgment of the whole court ? requirement was not fulfilled, and the defendant was right in Unanimity as to the decision itself does not carry with it her contention. Since the Cirencester and Cardiff branches agreement with overy observation contained in the judgment of of the County of Gloucester Bank could not for the purpose of a single member of the court. Here the junior judges had no receiving the notice be treated as identical, there was in fact opportunity of correcting any slip (if such there be) in the no notice sent on the 12th, and on the strict reading of the judgment of their chief, or of adding any explanatory observa- statute, the defendant was right. This view was adopted by tions of their own. The words of the statute are clear, and, COLLINS, L.J., who did not admit that the telegram of the 13th with very great respect, it is submitted that a judgment given could cure the omission to send off the notice on the 12th. The in this way is not given in exercise of the jurisdiction which majority of the court (A. L. SMITH and RIGBY, L.JJ.), however, Parliament has conferred five or more judges."

treated the sending of the two notices, the first by letter and the second by telegram, as one continuous act, so that the error in

the letter was cured by the telegram. Substantially, of course, IT WOULD undoubtedly have been useful had the case of this is right, since in the result there was no actual delay; but Moult v. Halliday decided the point for which the plaintiff con it is difficult to see how a letter which was sent to the wrong tended-namely, that in the case of the hiring of a domestic persons, and therefore was ineffectual, was entitled to be servant either party is at liberty to terminate the service at the regarded at all. The actual notice was the telegram, and that end of the first month by notice given within the first fortnight; was not sent off within the statutory time. It is important to but, under the circumstances of the appeal to the Divisional maintain the principle of sending notices of dishonour without Court, it was impossible for the existence of the alleged custom delay, but a little more elasticity in the Bills of Exchange Act to this effect to be determined. The plaintiff entered the would avoid the necessity for such a questionable straining of service of the defendant as housemaid on the 1st of March, and the law. on the 12th of March gave notice to leave on the 1st of April. The plaintiff left accordingly on the last-named date, but the CAN A court acquire jurisdiction by prescription ? Ever since defendant claimed to be entitled to a month's notice, and refused the Companies (Winding-up) Act, 1890, the Chancery Division to pay the plaintiff her month's wages. For those the latter has never hesitated to alter à memorandum of association or to sued in the Westminster County Court. Ordinarily the contract reduce the capital of a company. And yet these applications between the master and a domestic servant is a contract to serve for a year, the contract to be determined by a month's notice diction to make an order for winding up the company. In Re

are expressly directed to be made to the court which has jurisor by payment of a month's wages (per Parke, B., in Turner v. Islington and General Electric Supply (36 SOLICITORS' JOURNAL, Mason, 14 M. & W., p. 116). Upon this contract the further 487, 1892, W. N. 81) CHITTY, J., with the concurrence of term allowing special notice to be given for the termination of NORTı, STIRLING, and KEKEWICH, JJ., held that the jurisdiction the contract at the end of the first month can, of course, be was unaffected by the Winding-up Act, 1890, as the transfer grafted by custom, but the question whether or no such a order of the 26th of March, 1892, only operated on a particular custom exists is one of fact, to be determined in a county court portion of the High Court's jurisdiction, and left the rest uncase by the judge of the county court, and in the present case touched. He held that the order did not apply to petitions for the judge decided against the custom. Since he had done so reduction of capital or to applications under the Memorandum there was no possibility of altering the result, and the Divisional of Association Act, 1890. Now, the only jurisdiction of the Court (HAWKINS and CHANNELL, JJ.) confined themselves to Winding-up Court being derived under the Winding-up Act observing that the custom was reasonable, and that, on the ani Order, it would seem that the Winding-up Court could ovidence before him, the county court judge might very well peither alter a memorandum nor reduce capital. In Re Mining have found that it existed. Probably not a few judges would Shares Investment Co. (41 W. R. 376; 1893, 2 Ch. 660) and Re have been willing to have arrived at this conclusion upon their Ocean Queen Steamship Co.(16.570; 16.666) VAUGHAN WILLIAMS, own extra-judicial knowledge. We should have said that tbs J., decided, after an elaborate argument, that the Winding up possibility of settling at the end of the first fortnight wheter Court could do both, but refrained from expressing any opinion the service was to continue beyond the month was an accepted on the powers of the Chancery Division. Under the Winding up axiom in every household. But custom is a matter of slow Act the High Court has jurisdiction to wind up.

companies, but growth, and, so far, this addition to the ordinary contract of the jurisdiction is to be exercised, either by such judge or judges service must be regarded as unproved.

of the Chancery Division of the High Court as the Lord Chancellor may assign to exercise that jurisdiction, or by the judge

who for the time being exercises the bankruptcy jurisdiction of A CURIOUS point as to the validity of a notice of dishonour of the High Court. The decisions are difficult to reconcile. The a bill of exchange arose in Fielding v. Corrie (ante, p. 45). The same point arises on an application to restore to the register plaintiffs sued as indorsees and holders of a bill of exchange under the Companies Act, 1880. The application must due on Saturday, the 10th of November, 1894, and one of the be made to “the superior court in which the company is defendants, Mrs. EDWARDS, was sued as indorser of the bill to liable to be wound up. In Re City Lands Investment Corporathe plaintiffs. Just before maturity, the bill was paid in by the tion (Nov. 20) such an application was made to NORTH, J., and plaintiffs to the Cardiff branch of the County of Gloucester Bank; was assented to by the registrar. No authorities were cited. was sent by the bank to their agents, the London and Westmin- NORTH, J., raised the question of jurisdiction, but on learning ster Bank, and was by the latter bank presented at the National that it was the common practice to apply in the Chancery Provincial Bank of England, where it was payable. The bill Division; that there was an unreported decision affirming the was dishonoured, and on the 12th of November the London and jurisdiction, and no decision to the contrary, he made the order. Westminster Bank gave notice of dishonour to the County of On the 27th of November the same learned judge made a Gloucester Bank, but by mistake the notice was addressed to similar order in Re Mutual Investment Co. without raising the the Cirencester branch of the bank and not the Cardiff branch. question at all. In the absence of any argument or discussion On the morning of the 13th the mistake was found out, and on the point, these cases can hardly be regarded as deliberate notice was sent by telegraph to the Cardiff branch. The Cardiff decisions as to the question of jurisdiction. So long as an branch then duly gave notice to the plaintiffs and the plaintiffs application is unopposed no difficulty is likely to arise, but to the defendant. The defendant alleged, however, that there should a hostile case arise in the Chancery Division, it is just had been a delay by the London and' Westminster Bank possible that Re Islington and Goneral Electric Supply might

be overruled by the Court of Appeal. The jurisdiction would, person shall sell to the prejudice of the purchaser any article of at all events, be more clearly defined than it is at present. food or any drug which is not of the nature, substance, and

quality of the article demanded by such purchaser." Since,

then, the word "knowingly” is not used in section 6, and since A CURIOUS QUESTION arises on a point in the law of landlord section 5 expressly refers to the two preceding sections, but not and tenant which must have frequently occurred in practice, to section 6, it seems clear that absence of knowledge is no but upon which apparently no precise authority can be found defence to a charge under section 6. Thus, it was decided in A. (a landlord) lets a house to B. (a tenant) for twenty-one Betts v. Armistead (36 W. R. 720, 20 Q. B. D. 771) that a baker years determinable at the end of the seventh or fourteenth year charged with selling bread containing alum was not excused by by either party on six months' notice. During the thirteenth proof that he did not know of the presence of the alum in the year, B., erroneously supposing that his right to terminate the bread. This was followed in Pain v. Boughtwood (38 W. R. 428, tenancy has arisen, gives a six months' notice to A., who, 24 Q. B. D. 353) and in Brown v. Foot (66 L. T. 649). It was equally under a mistake, accepts it. B. is permitted to go out on the authority of the last-mentioned case that the Kensington and A. puts a caretaker in the house, and attempts to let it. justices based their decision. BROWN was a milk-seller, who was Shortly afterwards, A. discovers that the notice was premature, convicted of selling watered milk. The evidence shewed that and claims to hold B. to his covenants to repair and to pay his servant, contrary to his express orders, had secretly added rent, &c., down to the end of the fourteenth year, B. having the water in question, and had sold the milk in that adulterated meanwhile taken another house. It is clear that the notice was condition without his master's knowledge. The court, however, invalid, and that the more acceptance of it by the landlord is of held that under these circumstances the conviction was right, no effect unless followed by some act amounting to a surrender and that a person is bound, not only to abstain himself from of the tenancy by operation of law. It is equally clear that if selling adulterated food, but to see that it is not sold by anyone A. and B., with full knowledge of the facts, had acted in the way on his behalf. There is, however, one recent case which, as above indicated there would have been a surrender of the reported, is not in agreement with the other decisions. This is tenancy; the principle being that where " the owner of a Kearley v. Tyler (65 L. T. 261), which was decided some six particular estate does an act the validity of which he is estopped months before Brown v. Foot, but is not noticed in the latter case. from disputing, or which could not have been done if the In this case the defendants were convicted under section 6, particular estate continued to exist, there the law says that the their servant having infringed the Act without their knowledge, act itself amounts to a surrender” (Lyon v. Reed, 18 M. & W.285). and apparently by mistake. The High Court quashed this con. The question, therefore, would seem to be whether A. ís viction, one of the learned judges being reported to have said estopped from denying the validity of his act-viz., the taking that "there is nothing in the Sale of Food Act, 1875, which possession (which was certainly inconsistent with the continu- prevents the applicability of the ordinary law as regards the ance of the relation of landlord and tenant), or whether he can criminal liability of a master for his servant to cases under that allege that he was acting under a mistake, and that B. was Act.” The respondent in this case was not represented by equally acting under the same mistake in going out. If, in the counsel, and the cases mentioned above do not appear to have circumstances supposed, A. had let the house to another tenant, been cited. It is submitted that the above-quoted observations it would be clear that the former lease was surrendered, and B. (if correctly reported) are not reconcileable with the other dewould be estopped from denying that his notice was a good one ; cisions, and that this case was wrongly decided. and if this is so, it would apparently follow, inasmuch as estoppels are mutual, that A. is equally estopped from denying the validity of the notice after it has been acted upon by both A CORRESPONDENT draws our attention to the recent case of parties. On the other hand, where parties come to an agree- Klamborowski v. Cooke, before the Lord Chief Justice and a ment under a mutual mistake of fact, such an agreement will special jury, in which the plaintiff sued in respect of a libel generally be set aside, even if the parties cannot be put in statu contained in the particulars of claim in a county court action. quo; and it is equally the law that an act, such as acceptance of Our correspondent suggests that such a claim is absolutely rent, which is generally unequivocal and gives rise to the pre- privileged, and refers to Odgers on Libel, 3rd ed., p. 216. The sumption of a tenancy, may be explained so as to rebut that cases quoted by Mr. ODGERS Amply support the proposition that presumption (see Doe v. Crago, 6 U. B. 90). It is, however, matters occurring in the course of judicial proceedings are submitted that the true conclusion in the present case is that, privileged, and if it were not so it would obviously be imthe act of taking possession being voluntarily done, although | possible for the parties and their advisers to take the necessary under a mistake, will operate as a surrender, upon the same steps to state and prove their claims. With respect to pleadprinciple upon which it has been held that if a tenant during ings this appears hardly to have been doubted, and the authorithe currency of his lease takes a new lease on disadvantageous ties relate to cases where it has been questionable whether thu terms, his old lease will be deemed to be surrendered. In other statement was made in the course of a judicial proceeding (Lake words, surrender takes place, according to the judgment in the v. King, 1 Wms. Saunds. 1316, note (1)). Thus in Buckley v; case above mentioned of Lyon v. Reed, « independently, and oven Wood (Cro. Eliz. 230, 248) a charge of procuring murder and in spite of, intention."

piracy contained in a bill in the Star Chamber was held to be actionable, because over such matters that court had no juris

diction. On the other hand, Hare v. Mellers (3 Loon. 163) A CONVICTION was lately obtained at the Kensington Petty decided that no action lay for defamatory expressions conSessions against certain well-known refreshment contractors for tained in a bill in Chancery, although addressed directly to the selling spirits adulterated with water, contrary to the provisions Sovereign. In recent times the rule was recognized by POLLOCK, of section 6 of the Sale of Food and Drugs Act, 1875. It was B., in Proctor v. Webster (16 Q.B. D. 112), where it was held, howproved to the satisfaction of the justices that the offence was over, that a letter addressed to the Privy Council with respect to committed by servants of the defendants without the knowledge the conduct of an official whom the Council had power to remove or connivance of the defendants, and against their express was not a proceeding in the course of justice, and was actionorders, but it was held that this fact constituted no defence to able. It might be supposed that there was less need to allow the charge. It is hardly open to question that the magistrates the privilege to affidavits than to pleadings, but oven here the came to a right conclusion. Apart from decisions of the courts, same rule prevails, and though an affidavit is scandalous, false, the Act of Parliament seems clear, and the Legislature appears and malicious, and the person injured by it is not a party to the to have deliberately intended that it should have the meaning cause, no action of libel will lie (Henderson v. Broomhead, 4 H. put upon it by the judges. Sections 3 and 4 of the Act refer to & N. 569); and it makes no difference that the statement comthe serious offences of deliberately mixing any injurious sub- plained of was irrelevant and has been expunged from the stance with any food or drug, or selling any food or drug so affidavit as impertinent and scandalous by an order of a commixed. With regard to these offences, it is expressly provided, potent court (Kennedy v. Hilliard, 10 Ir. C. L. R. 195). Provided by section 5, that absence of knowledge shall be a good defonce. Only the court has power to entertain the action in which the This provisó does not apply to section 6, which enacts that "no pleading is made or the affidavit sworn, such documents come

within the rule that statements made in the due course of judicial proceedings are absolutely privileged. The fact that this point THE ORGANIZATION OF THE PROFESSION. was not taken in Klamborowski v. Cooke is certainly not to be A GOOD deal was said, and very well said—especially by the regarded as casting doubt upon the rule.

President-at the annual dinner of the Bradford Incorporated

Law Society, as to the objects and utility of organizations of THERE ARE many cases in which the law implies indemnities, solicitors. The President, we are glad to observe, discarded the in obedience to principles of justice (De Colyar on Guarantees, cant current in some quarters about the importance of these 3rd ed., p. 59, and cases there cited). Thus it is a well-estab- societies not putting forward the so-called selfish interests of lished general rule that whenever a person mortgages his estate

solicitors. “They were," he said, “men of a profession which to secure the debt of another, the mortgagor can call upon the could not be entered without hard labour and training, and withdebtor to indemnify him by exonerating the estate so mort- out serious expense, and it would be unnatural if lawyers saw gaged (Lee v. Rook, Mos. 318 ; Peirs v. Peirs, 1 Ves. 521). To efforts being made, for some reason or other, to take the work this rule the case of a married woman joining with her husband which they had been declared qualified to perform out of their in raising money by mortgage of her separate estate is no ex- hands, and to place it in the hands of officials specially created ception, she being regarded, under such circumstances, as a

for that purpose, and did not advocate their own interests. mere surety for him, and therefore entitled to all the rights in They had done so in the past, and it would be their duty to do cident to that relation (Hudson v. Carmichael, Kay 613; Hunting- so until they were satisfied that the change was not only necesdon v. Huntingdon, 2 Bro. P. C. 1; Aguilar v. Aguilar, 5 Mad. sary in the interests of the public, but was also, in all details,

This declaration, 414): It has, however, been recently held by KEKEWICH, J., capable of being satisfactorily worked." in Paget v. Paget (ante, p. 67), that where a wife's life interest which we hopo represents the attitude of most of the country under a settlement has been made available for raising money

law societies, is especially welcome at the present time; because to pay her husband's debts by means of relief from the restraint in the future it is probable that the profession will have to look on anticipation obtained by order made under section 39 of the to these societies for the efficient protection of their interests Conveyancing Act, 1881, the wife cannot compel the husband to from encroachments which the Government of the day or Parliaindemnify her or her separate estate against her contributions ment may attempt to make. towards payment of his debts. The ratio decidendi of the judg.

The Incorporated Law Society has done, and will continue to ment seems to be that, as the order giving the relief prayed do, valuable work as regards the discipline of the profession, made no mention of an indemnity, therefore none could be im- and its protection against interlopers other than Government plied and none could have been contemplated or intended by the officials or Parliament. But no one who has observed the married woman herself. Without venturing to question the course of recent events can doubt that, as regards the protection accuracy of this decision, having regard to all the facts of the of the profession against the progress of officialism, the Central case, we would nevertheless suggest that the mere omission Society has ceased to be an efficient agency; and it seems to us from the order of the court of any reference to an indemnity is that the sooner this fact is recognised by the profession, the by no means inconsistent with the notion of an implied in-better it will be for their interests. demnity. On the contrary, it seems rather to favour the view

We do not mean to imputo blame to the council of the society; that the court considered the indemnity implied by law to be the fact is the almost necessary (if unforeseen) result of the sucsufficient, and therefore did not prescribe any other.

cons which has attended measures taken by them with a sincere regard to the interests of the society. They thought it well

to call in King Stork, and they now find (what perhaps they THE CASE of The Glengyle, recently decided by Mr. Justice did not anticipate) that they must submit to his rule. They BARNES, is a good instance of foreign enterprize. The steamship succeeded in getting their President for the time being placed Glengyle collided with the steamship Coronet in the Straits of on the Rule Committee, with the result that on any questions Gibraltar, and, in a sinking condition, was salved by the steam- affecting the interests of the profession which come before that ships Hermes and Nerva. The Hermes belongs to the Neptune committee their mouths as a council are closed. They can Salvage Company, of Stockholm, and the Nerva to the Nordischer only "instruct” the President. But the President for the time Bergungsveroin, of Hamburg, two companies formed solely for being may be, either a man with strong opinions of his own and the purpose of rendering salvage assistance to vessels in distress. in a minority on the council on the particular question, or he It soems extraordinary that, with the amount of shipping sailing may not be a self-assertive person, and may habitually allow under the British flag, this class of salvage work should himself to be “snuffed out" by the masterful judicial members apparently be in the hands of foreigners. It cannot altogether of the Rule Committee. It requires a good deal of courage be an unprofitable undertaking, considering that Mr. Justice to stand up to some of these members, and a year is a short BARNEs in this case awarded £19,000 to the owners, masters, time in which to learn how to deal with them. No sooner has and crews of those two vessels, and the Admiralty Court is a President attained some influence in the Rule Committee than always liberal in its awards for services rendered by steamers he disappears, and is succeeded by a man who has all to learn specially fitted for salvage purposes. The maintenance and over again. establishment, said BARNES, J., of salvage steamers such as the Bearing this in mind, anyone can compare for himself the Hermes and the Nerva is for the general benefit of owners and present chance of success in resisting an encroachment on the underwriters, and others interested in sea-going vessels and privileges of the profession with that which existed before the their cargoes, and the crows and passengers of such ships, and recent change. Formerly we should have had an admirable must be liberally rewarded. The principle acted upon by the report of the council, pointing out the evils of the proposed change, court is, not that of a quantum meruit, but of giving such an circulated among solicitors ; representations would have reached award as will oncourage people to keep vessels of adequate size the Rule Committee from all parts of the kingdom ; the council of and dimensions ready to go out. Some day, perhaps, the the Central Society would have brought all their influence to bear constant oncouragement held out by the Admiralty Court to on the committee, and as there is nothing the committee fears so this class of salvage will bear fruit, and we shall find salvage much as a public agitation (see their course with regard to the steamers owned by British owners.

Scottish question), the encroachment would have been promptly abandoned.

But this is not the most serious of the recent changes. DisWe understand that Mr. Crackanthorpe, Q.C., will at the guise it as you like, the fact is that the Incorporated Law Society beginning of the new year confine himself to practising before the have become pensioners of the Government of the day. If they House of Lords and Privy Council, and to taking case business. We have received from Messrs. Partridge & Cooper, of 191 and of which the Government have set their minds, the continuancə

are in any way unruly as regards any measure on the passing 192, Fleet-street and 2, Chancery-lane, specimens of several of their of the pension will be endangered; and its cessation would Diaries for 1898 in many different sizes, from the neat and convenient annual diary for general use to the quarto diary and the larger diary mean pecuniary difficulty to the Society. We do not mean to and call book. All are distinguished by good paper, clear printing, say, by any means, that this will prevent the council from acting and cheapness.

for the protection of the interests of the profession; but we

do say that it will inevitably dispose them to enter into some a winding-up petition should take warning by the rule of Mr. compromise which may not commend itself to the profession as Justice VAUGHAN WILLIAMS, which has recently been adopted the best which could have been obtained. We need not here by Mr. Justice BYRNE in Re Brighton Marine Palace and Pier Co. refer in detail to the difference between the terms obtained (41 SOLICITORS' JOURNAL 257 ; W. N., 1897, 12). Creditors or by spirited country law societies with regard to a matter of contributories supporting the successful side will not, under the the highest importance to the profession, and those which were usual order as to costs, be allowed any share of the costs if they meekly and joyfully accepted by the council of the Central are represented by the same solicitor as the successful petitioner Society.

or other litigant. The names of the supporters should be added The moral is that there is more need at present than there to the brief for the petitioner or company as the case may be ; ever was before for well organised and energetic country law but possibly the rule may be easily evaded. societies, as well as for the organisation which_knits them to In Re London Metallurgical Co. (45 W. R. 601 ; 1897, 2 Ch. gether under the name of the Associated Provincial Law 262) the official receiver tackled an outside liquidator on the Societies. We should be glad to hear that this latter body was question of the costs of certain proceedings. Mr. Justice in a prosperous condition.

ĎAUGHAN WILLIAMS distinctly laid down what was already known to company lawyers—that there is no such office as

"solicitor to the liquidator.” The liquidator commonly emCOMPANIES WINDING UP DURING THE LEGAL

ploys a solicitor, with the sanction of the court or the committee

of inspection, to take proceedings or do legal business (see YEAR 1896-1897.

section 12 (4) of the Companies (Winding-up) Act, 1890), but I.

he is under no personal liability to the solicitor for costs. The UNDER Mr. Justice VAUGHAN WILLIAMS' control the practice in case just cited shows clearly that obtaining the sanction of the winding-up court and registry seems to have become fairly the court or committee (under section 12 (1)) to the bringwell settled. Some reported decisions of the year shew that ing or defending of legal proceedings does not free the certain supposed rules of company law are not quite sound. For liquidator from the obligation of obtaining sanction under instance, most lawyers, up till quite a recent date, believed the section 12 (4) to the employment of a solicitor; that a sanction, court would never order a company to be wound up on the though not obtained prior to the initiatory steps of a proceeding, ground that it was “just and equitable" that it should be justifies future steps to which the sanction has been previously wound up (the 5th head of section 79 of the Companies Act, obtained ; and that the court will not, as a rule, though it has 1862), unless in a case ejusdem generis with those refurred to in power to do so, give subsequent sanction to legal proceedings the preceding heads of the section. But this rule, which un- commenced before sanction to employ a particular solicitor, doubtedly is to be found in the earlier cases, has now been more except in cases of urgency. or less whittled away. Mr. Justice VAUGHAN WILLIAMS, who The decision of Appeal Court No. 1 in Minna Craig Steamship delights in detecting a weak spot in an old Chancery case, had Co. v. Chartered Mercantile Bank (45 W. R. 338 ; 1897, 1 Q. B. for some time been feeling his way towards upsetting this 460) is interesting as showing that the judgment in rem of a doctrine, and he received encouragement from what other foreign court gives priority over the title of a liquidator judges said at the meetings of a recent committee. The learned although the winding-up order was made before the proceedings judge's decision in Re Thomas Edward Brinsmead & Sons (41 abroad were commenced. As to the effect when the proceedings SOLICITORS' JOURNAL 12 ; 1897, 1 Ch. 45) was not exactly in are in personam, seo Re Oriental Inland Steam Co. (22 W. R. 810, accordance with the ejusdem generis doctrine. The affirming L. R. 9 Ch. 557). decision of the Court of Appeal (1897, 1 Ch. 406), although it Under sections 32 and 43 of the Companies Act, 1862, certain is based on different grounds, recognized that the old construc- rights of inspection of the company's books are given to memtion of “just and equitable” was a narrow one, and Mr. Justice bers and others. Section 156 provides that where a compulsory Vaughan WILLIAMS ovidently did not consider that the Court of winding-up or supervision order has been made an order for Appeal wished to perpetuate the old doctrine, for shortly after- inspection of the books by creditors and contributories may be wards he held that the desirability of having a scheme sanctioned obtained from the court, and it has been held that, after such a under the Act of 1870 was enough to make it "just and equit-compulsory winding up or one under supervision has comable” that the company should be wound up, although the menced, the power of in in, at any rate under section 43, petitioner was only a creditor whose debt was payable at a is gone : Somerset v. Land ... bies Co. (W. N., 1897, p. 29). future time: Re Australian Joint-Stock Bank, 41 SOLICITORS'

When the sheriff is in possession under an execution at the JOURNAL 469, W. N., 1897, p. 48. Shortly afterwards the commencement of a winding up the court will order him to learned judge boldly declared that the ejusdem generis withdraw, the priority of the execution creditor being preserved : doctrine might now be disregarded, and held that a complete See Form 366 and the cases cited 2 Palmer, 6th ed., p. 306, 7th deadlock as to the management of a company's affairs was a ed., p. 332. Mr. Justice BYRNE, in Re Hille India Rubber Co. good ground for a winding-up order : Re Sailing Ship Kent-|(No. 2) (W. N., 1897, p. 20), followed this form and applied it, mere" Co., W. N., 1897, p. 58." In a recent edition of a well-in effect, in favour of other creditors who, the sheriff being known work the authors say: "It is to be regretted that the already in possession, simply lodged their writs of execution ejusdem generis principle was pushed so far in some of the earlier with him before the commencement of the winding up: authorities, and, whatever reported cases may say, there is a The courts have recently had before them several cases in strong inclination now to relax the rule”: Palmer's Co. Proc., which landlords, execution creditors, and others have claimed to vol. 2, 7th ed., p. 36.

have rights superior to those of the general creditors of a comDuring Mr. Justice VAUGHAN WILLIAMS' absences on circuit pany in winding up. In Croshaw v. Lyndhurst Ship Co. (45 Mr. Justice BYRNE occasionally undertook the winding-up W. R. 570 ; 1897, 2 Ch. 154) a judgment creditor of a company business, and undoubtadly he gave great satisfaction by fol- obtained the appointment of a receiver of the rents, profits, and lowing the lines of the practice as adopted when Sir R. VAUGHAN moneys receivable in respect of the company's interest in a ship WILLIAMS was sitting. Mr. Justice BYRNE has neither gone back and her freight, but before this order was acted on, a winding-up to the old practice nor ventured on experiments of his own. He order was made against the company. Mr. Justice STIRLING certainly declined to follow Re Mont de Piété of England (37 held, following certain bankruptcy cases, that the order created SOLICITORS' JOURNAL 48), in which an advertisement of a no charge so as to make the judgment creditor a secured winding-up petition was allowed, although it omitted the final creditor, and that it was not the same as seizing the property note in the prescribed form. But the final note was printed on in execution, and he therefore refused to give leave, under the other side of the leaf in the Queen's Printers' copy after the section 87 of the Companies Act, 1862, that the order should be page on which the form apparently ended. Mr. Justice BYRNE further proceeded with. There were prior incumbrances on the in Re Hille India Rubber Co. (W. N., 1897, 6) considered that property-the order was made without prejudice to them-and people had had time now to learn all about the form, and in the argument it is stated that their existence rendered it declined to overlook the irregularity of omitting the final note. impossiblo to issue execution. There was something which

Solicitors who act for more than one of the parties appearing on rendered th 9 issuing of a fi. fa. a useless proceeding, otherwise

a receivership order would not have been the remedy sought for.

THE LAW OF PROPERTY. In an earlier case in the Court of Appeal (Levasseur v. Mason & A GENERAL VIEW OF THE LAW OF PROPERTY. By J. ANDREW Barry (Limited), 1891, 2 Q. B. 73) Lord COLERIDGE says that a

STRAHAN, M.A., LL.B., and J. SINCLAIR BAXTER, B.A., LL.B. receivership order (in much the same form and also against (Lond.), Barristers-at-Law. SECOND EDITION. Stevens & Sons chattels) has been called a step or process of equitable execu (Limited). tion," and proceeds to say: "I should say that it is an order

The appearance of a new edition of Mr. Strahan's work on the Law which shews that, in the judgment of the court, the person of Property shews that his attempt to combine the outlines of both obtaining it would be entitled to execution, but that from some real and personal property has been appreciated. He has had to legal impediment execution cannot be had. It ascertains that, content himself, indeed, with giving the outlines, and, considering but that for that legal impediment, the person who obtains it the size of the book, no more could be expected; but, subject to the would be entitled to the money or subject-matter upon which the necessary limitations of space, he has touched with remarkable order is to operate." And Lord Esher says that when the lucidity on the topics which go to make up the law of property. difficulty is got over, the court orders the balance to be paid to extent on Austin's analysis, and of things which are capable of

Starting from a general description of ownership, founded to some the execution creditor, "and the moment that order is made it being owned, he treats in successive chapters of kinds of interests relates back, in my opinion, to the time when the receivership in things owned, of modes of holding interests, and of modes of order was made, and the receivership order takes effect from acquiring interests. This disposes of the main part of the subject. that time." And the words of Sir EDWARD FRY's judgment go Then there are rights over things owned by others, such as easean equal length, for he says that in Chancery “ an order for a ments and the like; proprietary rights not over things, including receiver was only made in the event of the plaintiff proving a choses in action; and the various personal disabilities in respect of prima facie title to execution against the goods in question, and property imposed by status. Notwithstanding the approximation of proving that prima facie title as of the day when the receiver the law of real property to the law of personal property, instanced

of the present year, the two systems are still essentially different, equitable execution as regards an interest in land are compared and it has required no little arrangement and ingenuity to exhibit with Mr. Justice STIRLING's decision, the propriety of that them as parts of one symmetrical whole. But Mr. Strahan has decision seems open to some doubt.

succeeded in doing this, and to students who use his book the The same learned judge again had to consider section 87 of advantage of seeing in close juxtaposition matters which are ordi, the Companies Act, 1862, in Re Roundwood Colliery Co. (45 narily kept so far apart will be very great. A specially useful W. R. 324; 1897, 1 Ch. 373). His decision---that a power of chapter is that on modes of holding interests, where the division of distress on premises adjoining those domised made a mining interests which takes place when property is held in trust or is lease a bill of sale—was reversed on appeal; but his dictum general view of the law of property than that which is contained in that the court will not, at the liquidator's instance, restrain this book. further proceedings under a distress levied on a company-lessee before winding up commences, but not completed by sale, unless

BOOKS RECEIVED. there are special circumstances rendering the distress inequit

Lectures on the Principles of Local Government. Delivered at the able-is untouched by the Court of Appeal, although apparently London School of Economics, Lent Term, 1897. By GEORGE the court has jurisdiction in every winding up to restrain further LAURENCE GOMME, F.S.A. Archibald Constable & Co. proceedings under a distress. This case also boars on the The Trial of Lord Cochrane before Lord Ellenborough. By J. B. position of a receiver, for the Court of Appeal held that, as the ATLAY, M.A., Barrister-at-Law. With a Preface by EDWARD DOWNES levy was before winding up, and before a receiver was "effect- | LAW, Commander, Royal Navy (retired). Smith, Elder, & Co. ively appointed” on behalf of the debenture-holders, it was

A Code of the Law of Rating and Procedure on Appeal. With an good against them. The receiver appears to be "offectively Appendix containing all the statutes (including the Agricultural appointed” before he takes possession (898 1897, 1 Ch., pp. Rates Act, 1896), Fully Annotated, and Specimens of Valuations made 392, 393); and effective appointment would appear to be the for the Purposes of Rating. By SYLVAIN MAYER, B.A., Ph.D., time at which the security actually attaches.

Barrister-at-Law. Waterlow and Sons (Limited).

Table of the Death Duties, including the New Estate Duties. By E. HARRIS, of the Legacy and Succession Duty Department, Sonerset

House. Second Edition. William Clowes & Sons (Limited). Price 6s. REVIEWS.

Addenda to the Third Edition of Edwards' Law of Property in THE ANNUAL PRACTICE.

Land; forming a Summary of the Land Transfer Act, 1897, with

some Provisions of the Land Transfer Act, 1870. THE ANNUAL PRACTICE, 1898. BEING A COLLECTION OF THE


Supreme Court; and FRANCIS A. STRINGER, of the Central Office,
Royal Courts of Justice. IN Two VOLUMES. Sweet & Maxwell

[To the Editor of the Solicitors' Journal.] (Limited); Stevens & Sons (Limited).

Sir,—The question of the duty on such grants was referred to in The most noticeable fact about this edition of the Annual Practice The modes there indicated of avoiding the extra 103. stamp on such

letters appearing in 26 SOLICITORS' JOURNAL, pp. 403, 462, and 491. is the increased bulk of Vol. II. Upon examination it proves to be sale were (1) to dispense with a separate declaration in the conveydue to the transfer to that volume of the tables of cases and of ance that the rent should be subject to the same equity of redempstatutes which were formerly at the commencement of Vol. I. As tion and power of sale and other powers as the land was subject to, these tables fill some 250 pages the change in the appearance of Vol. 1 and to add these words in the limitation of the rent to the mortgaII. is at once accounted for. But we question greatly whether this gee ; a deed so framed has quite recently been adjudicated without change will tend to the convenience of the reader.. Apart from this any 'stamp on the rent as a security for the mortgage debt ; (2) to alteration, the volumes retain the arrangement with which the pro- have a general deed which should apply to all rents (this would be fession has become familiar, and the editors refrain, perhaps either before or after the rents were created); or, if not too late, (3) prudently, from any forecast as to a revision of the work such as

the difficulty could be met by an express provision in the mortgage that in which they were wont to indulge. The changes in the rules deed.

the new rule 1 of order 16, allowing persons to be joined as plaintiffs p. 64, one effect would appear to be to give the mortgagor a right to where their claims, although based on distinct causes of action, Fedeem each particular rent on payment of its proportion (as stated) depend on a common question of law or fact, and there is the com- of the mortgage debt. pulsory summons for directions under ord. 30, r. 1. The effect of this

Dec. 3. rule on procedure, and, in particular, in cases where the defendant is in default as to delivering his defence, is discussed in the notes to

LIBEL IN PLEADINGS. order 27. The edition has been prepared with the care which the profession have become accustomed to expect, and it is stated in the

[To the Editor of the Solicitors' Journal.] preface that many of the notes have been condensed and rearranged. Sir,-An action of libel reported in this day's Times raises a point But the condensation of the entire work seems as far off as ever. which I was under the impression had been disposed of.

[ocr errors]
« PreviousContinue »