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agents to be that, where the writ of execution is issued by the the crowd and pressure of matters naturally produces, and almost town agent, the town agent receives the proceeds of such execu- requires, it is much to be desired that the opportunity should exist of tion on behalf of the country solicitor; that the town agent is adjourning into court any matter requiring greater deliberation; not entitled to retain any debt or any part of a debt so recovered ; and this will be all the more necessary if, as the committee that the London agent is entitled to the same lien as, and no greater propose, no appeal from the judge on interlocutory matters is to lien than, the country solicitor; and, therefore, if the country soli. be allowed, except by leave of the judge or of the court hearing citor could not retain the debt recovered as aforesaid against his appeals from such decisions. So far as cases of difficulty or imclient, so neither can the London agent retain it.” In opposition portance are to be withdrawn from appeal, the suitor will be the to the application, the technical rule referred to above was strongly more entitled to claim a hearing which, since it is to be final, urged. It was contended that there was no privity of contract should also be deliberate ; and so far as the Court of Appeal is to between the London agent and the country client, and no duty be called on to review the decisions of the judge, it is desirable, on his part to pay over the debt to her, consequently that out of respect both to the judge and to the appeal court, that the the court had no jurisdiction in the matter. But the court determination which is to be reviewed should be the result of his rejected this view and made the rule absolute. They said that mature and considered opinion. With this qualification, and " the most disastrous consequences might result to suitors if the always understanding for “ the Court in Banc" “the Court of London agents of their solicitors might stop all moneys which Appeal," the substance of the 8th, 9th, and 10th resolutions would come to their hands, and appropriate them to the payment of probably meet with very general acceptance. debts due to themselves from the country solicitor, without being If it is objected that the adjournment here proposed would liable either to an action or to the summary jurisdiction of the court. occupy too much of the judge's time, it may be observed that the Take the case of a country solicitor being discovered to be in a proposed transference to the Bankruptcy Court of the whole state of hopeless insolvency, and a debt of large amount due to a jurisdiction in debtors' summonses (resolution 11) would put much client having been received by the London agent. Can it be more time at his disposal for the remaining business. doubted but that an injunction would be granted, at the instance The abolition of rules nisi, and the substitution of the practice of the client, to restrain the London agent from paying over the of moving everything on notice, is also a matter which has been money to the country solicitor, and commanding him either to pay much discussed, and on which opinions are still divided. The it into court or pay it over to the client? We think such an committee decide in favour of the change (resolutions 14, 15), injunction would be granted as a matter of course; and, if so, we and we venture to think that the arguments of convenience predo not see why an order should not be made directing the London ponderate strongly in favour of this view. agent to pay over the money in a case like the present” (see 30 Two proposals are made on the subject of references, one of W. R. 14).
which, though said by the committee to “seem necessary, is We report in another column the decision on appeal from this not supported by any statement of reasons, and the reason for judgment. It will be seen that, in affirming the judgment, all the which is not obvious. It is proposed (resolution 17) that the members of the Court of Appeal repudiate the notion that fraud official referees (“ on the assumption that the procedure by way is necessary to justify the exercise of the summary jurisdiction on of official referees is to be continued," a mode of expression the application of a country client.
which suggests some doubt of its utility) shall have power to sit We believe that the claim raised in the recent case is opposed in open court. Why? Other arbitrators, who perform similar to the general practice of town agents, and met with little sym- | functions, do not sit in open court; nor is it proposed that pathy from them. It is tolerably obvious that the client's money masters holding references, whether compulsory or voluntary, ought not to be retained to pay the country solicitor's debt. But should do so. Why, then, should official referees? The we could have wished that the Court of Appeal had rather more informality of the procedure on a reference is what constitutes distinctly pointed out that whatever the country solicitor can re its advantage, and is supposed to compensate for some unquestiontain, the London agent is also entitled to retain, and, if necessary, able disadvantages; it seems a strange proposal to take away from apply in payment of sums due to him from the country solicitor. these references the chief reason for their existence. The other
proposal (resolution 24) is to give an appeal on questions of law from the decision of an arbitrator on a compulsory reference.
There can be no objection to this, which is, of course, intended THE PROCEDURE COMMITTEE'S REPORT.
to include references to masters ; in other cases it will not add
much to the powers already existing. Here, as elsewhere, for VII.
“ Court in Banc" must be always understood “ Court of Appeal,"? We propose to conclude this week our comments on the report otherwise the limit of £500 would be far too large. of the committee by noticing a few miscellaneous points, reserving The question of costs we have already referred to. But there for another occasion a few observations on pleading.
is one point which has, it would seem, very strangely escaped the As to the question of the master's list (resolution 2)—the question, notice of the committee. The rule by which a lower scale is to be that is, whether each cause should be assigned to a master before applied wherever there is merely a money demand or a claim for whom all applications up to trial should be heard-its importance damages, a higher one where the procuring of an injunction “is does not depend on the summons for directions, but on the ad- the principal relief sought," is in both directions so essentially vantage which arises from an acquaintance with the facts of the absurd that it is matter for surprise that it should have maintained cause being carried on from one stage to another, instead of need- its place. In an action to recover a sum of money or damages ing to be freshly learned by a new master. In many of the reckoned by thousands of pounds, involving difficult and important common applications, indeed in the whole course of many ordinary questions of law and fact, heavy responsibilities in care and causes, the advantage would be very slight, or none at all; there is trouble on all concerned, and much labour and anxiety, costs are no such complexity or peculiarity of facts as is of importance; to be taxed on a lower scale, but on an injunction to restrain but there are others where it would be of undoubted use; and interference with an ashpit, or the darkening of a scullery window, if there is no practical difficulty in such a distribution of busi- costs on a higher scale are to be allowed. If a purchaser claims ness (and with great deference to the masters we can see none), to recover his deposit on the ground that the vendor cannot make we do not see why a plan should not be adopted which would title, or that from any other cause, defective quantity or the like, profit some and would hurt no one
he is not bound to complete, the lower scale is to be followed ; The question whether the appeal should lie from a master to a but if the vendor insists upon his rights, and takes the first step judge sitting in chambers or in open court is, as the committee by bringing an action for specific performance, though the value point out, one on which opinion has been much divided. Their at stake is really the same, and though the questions to be tried conclusion is that “the advantages of transacting this interlocutory are identical, the costs are on the higher scale. This is ridiculous. business in chambers predominate.” We believe this conclusion It is a question whether in every case the judge ought not to be must be assented to as regards the general run of business. But required to say what scale should be applied. To guide his if, as must also be conceded, the transaction of business at chambers judgment certain primâ facie rules might be laid down, but not always implies something of thật rough and ready dealing which so as to absolve the judge from actually making a decision in every
case; nor would the burden of the determination be rejected by anyone who rightly understood how much of the justice of the
BANKRUPTCY LAW REFORM. case between the parties turns on the question of costs. But, in
[COMMUNICATED.] any case, the absurdity of the present rule ought to bring about
III. a reconsideration of the question, and the formation of a new and Before
new and BEFORE proceeding with the remaining clauses of the Government Bill of more reasonable system.
last session, we desire to supplement our remarks of last week upon the A few more words on this subject, and, in particular, as to the omission of the filing of a declaration of inability to pay as an act of proposed new scale of costs. This is not an historical but a bankruptcy, by calling attention to the form of a debtor's petition as practical question; still, as the committee have referred in support provided by clause 9, sub-clause 1. That sub-clauso provides that “a of their proposal to the fact that “ before the establishment of the
debtor's petition shall allege that the debtor is unable to pay his debts," county courts, cases in which the amount sought to be recovered
&c. Now, there is a similar statement in the form of petition for liqui
dation or composition under the present Act, and it was in consequence was less than £20 were dealt with in an exceptional manner as re
thereof that the filing of a petition for liquidation or composition was spects costs and otherwise,” it is as well to see how this matter really
matter really held to constitute an act of bankruptcy, it being a declaration of
he stands. By 3 & 4 Will 4, c. 62, s. 17, actions for liquidated inability to pay. In the case of Ex parte Fenning, Re Wilson (25 demands under £20, but not for unliquidated demands, though arising W. R. 185, L. R. 3 Ch. D. 455), this was carried still further, and it was out of a contract, might be sent for trial before the sheriff, except held that, the first meeting having been adjourned until a date more when they involved difficult questions of law or fact; and by than six months after the filing of the petition, a trustee could not then direction to the taxing masters (the history of which need not
be appointed, such appointment being equivalent to the presentation of be written in detail) costs in actions which might have been so
a bankruptcy petition, and the act of bankruptcy on which it was
founded-viz., the filing of the declaration of inability to pay contained sent for trial were to be taxed on a reduced scale. This direction
in the liquidation petition-having been committed more than six months was repeated in 1853; and the practice of sending such cases for before. If that fact be abolished as an act of bankruptcy, then we shall trial to the sheriff continued until the section under which this have, in adjudications made on debtors' own petitions, bankruptcies was done was repealed by the County Court Act, 30 & 31 Vict. without any act of bankruptcy committed to support them! It would c. 142, n. 6. But before 1853, the practical effect of this direction be somewhat curious to speculate upon the many nice questions this had been almost taken away by the establishment of county might give rise to upon which counsel might be called upon to exercise courts, and by the more stringent statutory rule which, in a much it
their ingenuity, and judges to decide. We will now proceed with the
other clauses of the Bill. wider class of actions, deprived the plaintiff of all costs when he
Clauses 11 to 15 are mostly new, and relate to proceedings after adjudi. sued in the superior courts. This, in brief, is the true history of
1,the true history of cation, and we will deal with the various clauses in rotation. this matter; and how little it resembles the proposal of the
" Clause 11.-(1.) On an order being made by a court adjudging a person committee will appear at once on reading the terms of the 20th bankrupt (in this and the principal Act referred to as an order of adjudication), resolution.
the property of the bankrupt shall vest in the official receiver of the court, However, the use of a false analogy will not show the proposal to be appointed as bereina!ter mentioned, and shall become divisible among to be wrong. If, after the abuse of interrogatories has been
the creditors of the bankrupt in proportion to the debts proved by then in
the bankruptcy. restrained, it is found necessary still to reduce the costs; and if a
" (2.) Where more than one official receiver is attached to the court, such reduction of the scale of costs for actions below a certain value one of them as is for the time being apppointed by the court for any particular may be so effected as still to leave the conduct of business in the estate sball be the official receiver for the purposes of that estate." bands of respectable practitioners with the prospect of a reasonable This clause introduces the official receiver of the court. As to remuneration, it ought not to be objected to. But there should whether the attaching of such an official to each court will be an improvecertainly be, as the committee propose, an effectual extension to ment upon the present law or not, we shall not discuss at any length. It both the Queen's Bench and the Chancery Divisions of the same appears to be a cardinal point in the Bill, and only experience of its work. scale or scales, if both Divisions are still to subsist, and for so long
ing will decide its utility. So far as this section is concerned, however, as they do so; and, as a means to this end, and as a thing itself
it appears only to substitute the official receiver for the registrar of the
court, and in practice this alteration will not make any difference, and required on grounds of common sense, the absurd test now applied the
the change will be one in name only. should be replaced by a more reasonable rule.
L“ Clause 12.-Any creditor or creditors may at the time of adjudication, or We believe that we have now dealt with all the main points of at any time thereafter, and before the appointment of a trustee in the bankthe report; and it is with regret that we find it less well con
ruptcy, apply to the court for the appointment of a special receiver or manager,
and thereupon the court may, if in the opinion of the court the interests of sidered, less carefully reasoned, less accurately expressed, and less the creditors require it, appoint a special receiver and manager of the bankrupt's practically conceived than might have been reasonably expected estate, or contioue any special receiver and manager previously appointed. from the body on the occasion. To augment the dignity of the
This clause, it is to be feared, will give rise to great uncertainty, and judges of the High Court and their officers, to fetter the Court of
will decidedly be very differently acted upon in different courts. In some Appeal, and not merely to control but to absorb the functions and courts we shall find a repugnance on the part of the officials (especially depress the position of those who practise before them, seem to have if the registrar should be also the official receiver, and he should be paid by been too much, if not the leading ideas which have governed the salary instead of by fees) to retain or assume any responsibility that can be deliberations of the committee, at least the end to which they have avoided, whilst others will make an invariable practice not to supersede the too exclusively tended; whilst, upon the other hand, suitors are to be
official receiver. The fact of such a diversity of practice being possible will
in itself be a great evil. Then if any creditor is to be at liberty to apply protected, not only against one another but against themselves, by
y for the appointment of a special receiver, we shall find cases of this being a system of paternal care, directed by that preternatural sagacity, I done by friendly creditors' solely in the interests of the debtor. We undeviating justice, and disinterested and energetic benevolence, think one uniform practice would be preferable to this, and this which are always supposed to characterize a despotism, but which could be done as it was under the Act of 1861, when the official have hitherto not been cordially accepted among this self-willed and assignee through the messenger of the court took possession of all troublesome race. Yet there are suggestions contained in the bankrupts' estates up to the first meeting, if it were not that by the Bill report on points of detail that we trust may be of value, if pains
bankruptcy proceedings are the only ones to be recognized in the first are taken to work them out with care and caution, and in such a
instance. In the case of a failure, where the great majority of the way as that they may fall in with that system which, having been
creditors are favourable to a composition arrangement being carried
speedily, these complicated proceedings and the intervention of an official so lately established by the Judicature Acts and Orders, needs
receiver would very much injure, and in many cases destroy, the possinow to be consolidated and improved, but not to be upset and re bility of carrying through such an arrangement. If therefore the prinplaced by a new constitution.
ciple of the Bill, that all arrangements with creditors to be binding on any non-assenting minority shall be carried only through an adjudication in bankruptcy, is to be insisted upon, then some modification which will
allow a receiver other than the official receiver of the court to be The St. James's Gazette understands that Sir Montague Smith
appointed must of necessity be introduced, so that in this view this clause has resigned the office of a paid judge of the Judicial Committee
or some other provision of a similar nature is absolutely necessary.
In any event, however, the right of creditors to apply for the appointof the Privy Council, which he has filled with great ability since
ment of a special receiver ought to be fenced round with greater safe. 1871, but that he hopes to give occasional attendance upon the
guards than are provided by this section, so as to prevent the right being sittings of the Judicial Committee, of which he is still a member. abused in the interests of debtors or by some sharp practitioner acting
for an isolated creditor. For instance, a certain proportion in number reside, and this would probably give the greatest amount of satisfaction, as and value of the creditors should be required to make the application, it would enable the greater number of creditors to attend personally inand the nominee of a majority in value of the creditors ought to be stead of appointing proxies. appointed unless objected to by the Board of Trade, as in the case of a Sub-clause 2.--The creditors ought also, in our opinion, to have the trustee, and upon his giving satisfactory security. This latter point does power they have at present to adjourn the first meeting. not appear to have been provided for at all in the case of receivers.
Sub-clause 3.-Surely if the bankrupt furnishes to the receiver, under " Clause 13.-(1.) A receiver or manager under this Act shall have the same clause 14, sub-clause 1, a statement of his affairs, the receiver might be powers as if he were a receiver or manager appointed by the High Court of required to file it with the proceedings, so that it could be produced to Justice, but shall account to the Board of Trade instead of to the court, every meeting without requiring the bankrupt to furnish a fresh copy at
“(2.) A receiver or manager shall not, unless tho board or court otberwise each meeting, which appears a needless expense. Provision, however, order, incur any expense beyond such as is requisite for the protection of the might be made for his amending same if he should discover any mistake debtor's property.
or error in the original statement, or if he should be required to do so by “ (3.) A receiver or manager may apply to the court for advioe and the court, and also for his furnisbing further accounts as to his dealings direction.
with his estate and accounting for his deficiency, if any, if so required. “(4.) A receiver or manager shall, as far as is practicable, consult the wishes of the oreditors with respect to the administration of the debtor's property, and for that purpose may, if he thinks it advisable, summon meetings of the persons claiming to be creditors." The Board of Trade is introduced by this clause as the governing body
REVIEWS. for the management of bankrupts'estates. This seems to be another cardinal principle of the Bill, and will no doubt be well discussed in Committee (if it
BILLS OF SALE. should re-appear in the future Bill of the Government) by members of Par. liament who are better able than we are to express an opinion as to whether
THE LAW OF BILLS OF SALE, WITH AN APPENDIX or PRECEDENTS AND the provision will work well or not, and we do not propose in these remarks
STATUTES. THIRD EDITION. By GEORGE EDWARD LYON and JOSEPH to discuss that question at any length. It is quite clear that some
HAWORTH REDMAN, Barristers-at-Law. Reeves & Turner. governing body should be appointed to see that estates are properly This useful little treatise upon a subject of great and still increasing administered, and the point is whether the Board of Trade, with its already importance, has the merit of being clear, intelligent, and fairly con. large functions, can better perform that duty than the court or some cise. Whether the style could be improved by further condensation is other independent body. No doubt there will be two widely differing a question upon which opinions might perhaps differ. Some of the opinions as to this, but there cannot be any doubt that with the present especial difficulties of English law spring from the co-existence of several President of the Board of Trade, with his great experience in commercial enactments bearing more or less closely upon the same matter. Where matters and in organization generally, at the head of that department of amending statutes are piled one upon another, the result is merely a the State, every effort would be used to make the experiment a successful cuinbrousness which might be removed by judicious codification. But one. Whether it will be go really depends upon the ability of the in some cases the existing body of the law cannot so easily be reduced officials intrusted with the carrying out of the scheme.
to a common measure ; where confusion has been introduced by applying " Clause 14.-(1.) The bankrupt shall give to the official receiver of his several partial and partly over-lapping remedies to several mischiefs, estate guch information with respect to the estate as he may be required to having a community of character without being identical. A remarkable give under section 19 of the principal Act, and in particular shall within example of this complexity is found in the grounds upon which bills of sale three dıys after the adjudication, or within such extended time as the court may be set aside in favour of creditors. It not unfrequently happens that may for special reasons allow, make out and submit to the official receiver a two (or more) of these causes coincide; whence has arisen so much constatement verified by affidavit, and showing, as far as practicable, the par- fusion between them, that the degree of clearness with which they are disticolars of the bankrupt's assets, debts, and liabilities, the names, residences, criminated is a good test of the subject's successful treatment. If we think and occupations of his creditors, and the securities held by them respectively ; ) that in this respect Messrs. Lyon and Redman's work is capable of im. but where any such statement is prepared by a person nominated by the
provement, we find in it more to praise than to blame. We may remark bankrupt, tbe costs of the preparation shall not be allowed out of the bank.
that the case of Ex parte Harrison (p. 107) came before the Court of rupt's estate, except with the approval of an ordinary resolution of creditors.
Appeal in April last year (as Ex parte Butters, L. R. 14 Ch. D. 265), and * (2.) Any person stating himself in writing to be a creditor of the bankrapt may, personally or by agent, inspect this statement at all reasonable times,
that the judgment of Vice-Chancellor Bacon was reversed. There may be and take any copy thereof or extract therefrom."
some doubt whether the objection to the jurisdiction upon which the Vice
Chancellor had relied, was expressly overruled; but there can be no Sub-clause 1.-We consider it a wise proposal to compel a bankrupt to
doubt that, for all practical purposes, its authority has been destroyed. gire all information as to his estate and liabilities at the earliest practic
Upon the whole, we are able to commend the present work to the favourable moment. But as to the cost of preparing the statement, we think
able attention of our readers. We think that the questions, what conthis might well be left to the discretion of the court and not to the
stitutes a bill of sale, and what persons are “ traders" within the caprice of the creditors. The court would be a more independent
meaning of the Bankruptcy Act, and the subject of “reputed ownership" tribunal to determine such a question, and in matters of this kind the
as bearing upon bills of sale, are treated with considerable care and power should not be placed in the hands of the creditors, who are too apt intelligence. to be influenced by personal feeling.
Sub-clause 2.-As a greater check upon the evil of “touting" we would suggest that before a creditor or his agent is allowed to obtain an
PRINCIPLES OF CONTRACT. inspection of, or extract from, a bankrupt's statement, he should be
PRINCIPLES OF CONTRACT: BBING A TREATISE ON THE GENERAL PRINCIPLES required either to prove his debt or make an affidavit that he is a
CONCERNING THE VALIDITY OF AGREEMENTS IN THE LAW OF ENGLAND. creditor. This is required, under the present law, by many courts
THIRD EDITION. By FREDERICK POLLOCK, Barrister-at-Law. Stevens throughout the country, and would, we think, be a more effectual check
& Sons. than the mere requirement that he should state such a fact in writing. In any event some penalty ought to attach to a person untruthfully
This edition has been largely remodelled by the author, among the representing himself to be a creditor for the purpose of getting a copy
most important of the alterations being the adoption and development of the statement say that he should be guilty of a contempt of court,
of the views expressed by Mr. Justice Stephen in the case of Alderson and punishable accordingly on the application of the trustee, receiver, or
v. Maddison (29 W. R. 105) with reference to the notion of a repre. any creditor.
sentation which, although neither a contract nor part of a contract, may " Clause 15.-(1.) The official receiver shall summon the first meeting of
have the effect of binding the person who makes it as much as if it were creditors for a day not later than seven days after the adjudication, unless the
a contract. It will be remembered that the Court of Appeal reversed court, for any special reason, deem it expedient that the meetiog be summoned
Mr. Justice Stephen's decision on another ground (29 W. R. 556), and for a later day.
did not discuss this question. Mr. Pollock gives in an appendix a full " (2.) He may, subject to the directions of the court, adjourn tbe first meet
review of the cases, of which Traill v. Baring (4 De G. J. & S. 318) is ing from time to time and from place to place.
the most difficult to deal with; and he comes to the conclusion that, "(3.) The bankrupt sball, unless prevented by sickness or other cause satis. “notwithstanding the difficulties presented by the form in which many factory to the meeting, attend the first and other meetings of his creditors and statements of more or less authority have been made, the view proany adjourned meeting, and shall produce to his creditors at each of such pounded by Mr. Justice Stephen is the correct one." Our own opinion, meetiogs a statement of his affairs in the prescribed form, and shall submit to which we expressed on the decision of Alderson v. Maddison, is strongly such examination and give such information as the meetings respectively
e., meetings respectively in favour of that view, but we doubt whether the difficulties raised by require, and if he fails to do so he shall be deemed guilty of a contempt of the cases will be got rid of quite so easily as Mr. Pollock thinks, and we court."
are disposed to question the advisability, under existing circumstances, Sub-clause 1.–The mode of summoning the first meeting should, we of taking so strong a line in a work which professes to state the prin. think, be prescribed. And the place where it is to be held should also be ciples of the law as it is, and not as it ought to be. For the rest, we prescribed. The general feeling amongst commercial people is, we believe, have nothing but praise for this edition. The material recent cases have that it should be held in the place where the bulk of the trade creditors been added, and the whole work has been carefully revised.
I and my opponent, who is equally anxious with me for the queries to STONE'S JUSTICES' MANUAL.
be settled, have hitherto been unable to catch the master, or, in his abThe Justices' MANUAL; OR, GUIDE TO THE ORDINARY DUTIES OF A sence, to procure an appointment. The result of this is that my em
JUSTICE OF THE Peach. By the late SAMUEL Stone, Esa. TWENTY. ployer thinks I am neglecting my duty to him, and the client cannot FIRST Edition. Edited by GEORGE B. KENNETT, Esq., Solicitor and Clerk understand why there should be so much delay in disposing of the few to the Justices of Norwich. Shaw & Sons.
trifling questions which remain to be determined. Mr. Kennett is very severe in his preface on the “ novel system of
The matter is of some importance, as there is some question as to the hurried legislation" which he says was “commenced in the last session
solvency of the party by whom the costs will have to be paid. of Parliament.” It is probably true that there have been few sessions in
I venture to suggest that if the attention of the Lord Chancellor could which 80 many ill-drafted measures were passed as the last. But
be drawn by the Council of the Incorporated Law Society to this, as although the eystem may, perhaps, have culminated, we do not
well as to other evils which still prevail at judges' chambers, some remedy think it had its commencement in the last session, as witness the Acts
would be devised.
A MANAGING CLERK. relating to wild birds. We are approaching a time in which the
Dec. 13. parliamentary draftsman will look upon an amending Act as a usual and proper supplement to his efforts. As the last edition of this book was
THE INTERMEDIATE EXAMINATION. published last year only, the changes in the law to be incorporated in the
[To the Editor of the Solicitors' Journal.] present edition are not extensive. We can testify, however, to the care with which they have been incorporated. Thus Reg. v. Lovell (50 L. J.
Sir, I observe that one of your contemporaries, circulating amongst M. C. 91), as to demanding with threats an exorbitant sum for services,
law students, complains of the questions which were required to be is not only stated at p. 471, under the head of “Larceny Defined,"
answered at the last Michaelmas examination under heads 2 and 3. but is also referred to, at p. 475, under the heading of “ Larceny by Trick
On referring to one of the books of questions and answers on or Fraud.” In fact, the only criticism we have to offer as regards the
“Stephen's Commentaries" prepared for the use of candidates for this recent cases is to express a doubt whether the statement at p. 561 of Reg.
examination, I find that all the questions of which complaint is made V. Salmon (29 W. R. 246) is sufficiently full. It would be convenient
are to be found in the book in question, together with the correct answers, if, in the index of cases, some means were adopted of distinguishing
though the language of the questions at the last examination was to some different cases having the same name. There might be added a short
extent necessarily varied. It therefore seems to me that the complaint statement, between brackets, of the matters to which each of such cases
in question has no foundation. It ought not to be allowed to remain relates.
unnoticed, lest the assistant examiners and the council should be deterred from framing questions in future upon the Commentaries the answers to
which will tend to show that not only has the candidate read the guides BILLS OF EXCHANGE.
prepared for his assistance, and which are in most cases so much studied, A DIGEST OF THE LAW OF Bills or ExchaNGE, PROMISSORY Notes, AND but also the Commentaries themselves.
A SOLICITOR. CHEQUES. By M. D. CHALMERS, Barrister-at-Law. Second EDITION.
December 14, Stevens & Sons.
The new edition of this admirable book is rendered more complete by the addition (perhaps owing to a suggestion made by us in reviewing
CASES OF THE WEEK. the former edition) of a chapter on securities for bills of exchange, dealing, among other matters, with the rule in Ex parte Waring. The recent cases have been carefully added, and the provisions of the Crossed
PATENT-SLANDER OF TITLE-ALLEGATION OF INFRINGEMENT-DAMAGES Cheques Act, 1876, have been added as articles to the Digest.
-INJUNCTION.-On the 6th inst, the Court of Appeal (Lord COLERIDGE, C.J., and BAGGALLAY and LINDLEY, L.JJ.) affirmed the decision of JESSEL, M.R., in the case of Halsey v. Brotherhood (29 W. R. 9, L. R. 15 Ch. D. 511). The plaintiff was the owner of a patent, and the defendant was the owner of a patent of prior date for a cogoate subject-matter. The action was brought claiming damages from the defendant, on the ground that he had wrongfully stated and represented to customers of the plaintiff, and other persons intending to deal
with him, that the articles manufactured by the plaintiff were an infringement TAXATION OF COSTS.
of the defendant's patent, and that he had threatened such customers and [To the Editor of the Solicitors' Journal.]
other persons with actions if they purchased or used the plaintiff's articles.
The plaintiff also asked in his claim for general relief for an injunction. The Sir,—In July last I entered a cause for trial in an action for damages
defendant by bis statement of defence denied the validity of the plaintiff's against a railway company for personal injuries to a client, and during
patent, and asserted that the articles made by the plaintiff were an infringethe Long Vacation I got up the evidence for the plaintiffs, prepared the ment of the defendant's patent. Ho admitted that he had represented to briefs, and issued subpoenas.
various persons that the plaintiff bad infringed his patent, but denied that he About the 25th of September the plaintiffs' solicitors suggested a had threatened them with legal proceedings. And he said that the statement reference to two physicians; and about the end of October an order of which he had made bad been made bona fide, in the full and honest belief reference was accordingly made referring the cause to the award of the in his rights as a patentee, and with the intention to follow up the same, if said physicians, and that the costs of the cause should abide the event,
necessary, by proper proceedings in support of his patent rights. The and that the costs of the reference and award and the arbitrator's fees
defendant had not, however, in fact, taken any proceedings to contest the should be paid by the defendants in any event.
validity of the plaintiff's patent, or to restrain him from infringing the On taxation the master disallowed the costs of the brief and many
defendant's patent. JESSEL, M.R., held that a patent, so long as it subsisted,
was prima facie valid, and that the owner of it was not bound to assert his other legitimate charges, and in fact reduced the bill of costs by more
supposed legal rights under it against supposed infringers by action, but was than one-half.
entitled, if he did so bona fide, to give notice to them that they were infringing Can any of your readers inform me when a plaintiff is entitled to
his rights, and was not liable in damages for the injury caused by his notices commence to get up evidence and prepare brief for trial ? Is it usual to the person who was selling the article which he alleged to be an infringefor masters on taxation to disallow counsels' fees for settling special ment of his patent, even though he was, in fact, in error in believing his particulars of claim against a railway company in an action for damages, patent to be valid. An action for damages could not be maintained unless the pursuant to an order of one of the masters, and also to advise as to
notices were issued mala fide. And bis tordship also held that, if it was sufficiency of answers to interrogatories; also for examining proof for
proved in the action for an injunction that the defendant's allegation of infringeprinter, and printer's charges for printing answers to interrogatories
ment, though inade bona fide, was, in fact, untrue, the defendant might be where the document is ten folios ?
restrained from continuing to issue the notices. In the present case his lordIt is high time that there should be some uniformity of practice in
ship held that the action was in substance only an action for damages ; and this respect. What one master allows in taxation another master dis
be therefore dismissed it, but without prejudice to a new action for an in.
junction. This decision was affirmed by the Court of Appeal on substantially allows.
the same groupds.-SOLICITORS, Sandom, Kersey, f Knight; Cope & Co.
WILL, REVOCATION-EXERCISE OF GENERAL POWER OF APPOINTMENT[To the Editor of the Solicitors' Journal.]
WILLS ACT (1 Vict. c. 26), s. 27.-In a case of Sotheran v. Dening, before the Sir,--Allow me to express my thanks for the communications which you
| Court of Appeal on the 7th inst., the question arose whether an exercise of a have allowed to appear in your columns with respect to the way in
power by will had been revoked by a subsequent will. By a settlement made which business is transacted at judges' chambers, especially by the
in 1870 real estate was vested in trustees upon trust for such persons as C., masters.
whether covert or sole, should by will appoint, with remainder in default of
appointment to E, in fee. In 1871 C. made a will by whicb, in exercise of I have for some weeks past been endeavouring to get one of the
the power, she appointed the real estate to S. in fee. In 1877 C. made a masters to settle some queries arising on the taxation of a bill of costs second will, commencing with the words, “I revoke all former wills," which by him. In consequence of the variety of the master's duties, and the contained a general devise of all her real estate to G., but did not in terms difficulties which exist in knowing when he will actually be at chambers, refer to the power of appointment. In 1878 C. made a third will, which, though it did not, in terms, purport to deal only with personal estate, did, in though it did not appear that his lordship's attention had been especially fact, make only dispositioos of personal estate. This will concluded with the called to the propriety of the latter disallowance. The Court of Appeal words, “ Hereby revoking all former or other wills, I declare this to be my (BAGGALLAY, LUSH, and LINDLEY, L.JJ.) said that the rule of law was last will and testament." The question was to whom the real estate subject correctly laid down by Fry, J., in the recent case of Trotler v. Maclean (28 to the power of appointment belonged. S. claimed it on the ground that the W. R. 244, L. R. 13 Ch. D, 574)-piz., that where the wrongful working has appointment contained in the first will was not affected by either of the later been merely by inadvertence, the wrongdoer will be allowed both the costs of wills. G. claimed it on the ground tbat the first will was revoked by the severing the minerals and the costs of bringing them to bank. But, when the second, and that the general devise contained therein operated as an exercise unauthorized working has been intentional, he will be allowed only the costs of the power, and tbat the second will was not affected by the third. E. of bringing the minerals to bank. He will, however, be allowed those costs. claimed the property on the ground that the tbird will revoked the appoint. The order of the Master of the Rolls was, therefore, varied in accordance with ments contained in the first and second wills, and, that, consequently, the this rule.---SOLICITORS, T. W. Rossiter; Ullithorne, Currey, d. Pilliers. property passed in default of appointment. Jessel, M.R., held" (25 SOLICITORS' JOURNAL, 317) that the latter view was the correct one, and his decision was affirmed by the Court of Appeal (Lord COLERIDGE, O.J., and |
SPECIFIC PERFORMANCE-CONTRACT FOR SALE OF LAND-IDENTIFICATION Lrse and LINDLEY, L.JJ.).-SOLICITORS, Emmet & Son; J. W. Smith.
OF PROPERTY-STATUTE OF FRAUDS (29 Car. 2, c. 3), ss. 4, 5.-In a caso of Shardlow v. Cotterell, before the Court of Appeal on the 3rd inst., the
question arose whether, in a contract for the sale of land, the specific perform. COMPOSITION-SECURED CREDITOR-VALUATION OF SECURITIES-SECURI. | ance of which was sought by the purchaser, there was a sufficiently definite TIES ON JOINT AND ON SEPARATE ESTATE-BANKRUPTCY ACT, 1869, s. 16– description of the property to satisfy the Statute of Frauds. On the 29th of BANKRUPTCY RULES, 1870, R. 272.-In a case of Couldery v. Bartrum, March, 1880, property belonging to the defendant Cotterell at Pinxton in before the Court of Appeal on the 8th inst., a question arose as to the liability Derbyshire, consisting of a dwelling-house, stable, and other buildings of a gecured creditor of a compounding debtor who has proved bis debt, connected therewith, was put up for sale by auction at the Sun Inn, Pinxton. valuing bis security in his proof, and has received the composition on the At the sale conditions of sale were produced, but no particulars of the propbalance of the debt after deducting the value of the security, to account to erty. Posters bad, however, been previously published in the neighbourhood the debtor for any surplus which the security may afterwards realized in excess containing a description of the property. The plaintiff was declared the of the valuation. Two petitioners filed a liquidation petition under which their highest bidder at £420, and after the sale the following memorandam, signed joint creditors resolved to accept a composition of 10s. in the pound payable by the auctioneer and appended at the foot of the conditions of sale, in instalments. One of the joint creditors who voted in favour of the was handed to the plaintiff :-“The property duly sold , to Mr. A. Shardlow, composition held a security for bis debt on joint property of tbe debtors, butcher, Pinxton, and deposit paid at close of sale." The auctioneer also and also another security on separate property of one of the partners. His gave the plaintiff the following receipt signed by him :-" Pinxton, debt amounted to £2,400, and in his proof he set forth in detail both his March 29, 1880.-Receired of Mr. A. Shardlow the sum of £21 as deposit on securities, and concluded by assessing the value of his security at £800, and property purchased at $420 at Sun Inn, Pinxton, on the above date-Mr. elaiming to stand as a creditor for the balance of £1,600, and he voted at the George Cotterell, owner." The vendor afterwards refused to complete the meetings as a creditor for £1,600. The composition was duly carried out, and purchase, and the purchaser brought the action for the specific performance of he received the composition upon £1,600. He afterwards realized his joint the contract. Kay, J., held (29 W. R, 737, L. R. 18 Ch. D. 280) that the security, and thereby received more than £800. The debtors, four years receipt might be read with the memorandum (though the poster could not), after the completion of the payment of the composition, brought this action, but that the receipt and the memorandum together did not contain a snfficient claiming the surplus of the proceeds of the joint security, and the whole of description of the property to satisfy the Statute of Frauds, and that consethe separate security, and Jessel, M.R. (25 SOLICITORS' JOURNAL, 95), decided in quently parol evidence could not be admitted to show what the property favour of the claim. It was contended that, inasmuch as in a bankruptcy or a consisted of. He accordingly dismissed the action. This decision was liquidation by arrangement the creditor would not have been bound on making reversed by the Court of Appeal (JESSEL, M.R., and BAGGALLAY and LUSH, his proof to deduct the value of his security on the separate estate, but would | L.JJ.), who held that the property was sufficiently described to satisfy the have been entitled, notwithstanding his proof, to retain that security until bis statute. JESSEL, M. R., thought that Kay, J., was right in holding that the debt was paid in full, the same rule must apply to composition, and he could not memorandum and the receipt might be read together, but he was of opinion be prejudiced by the mistake which he had made in deducting the value of the (if it was necessary to decide it) that the receipt alone was sufficient. separate security. The court (BAGGALLAY, Lush, and LINDLEY, LJJ.), how. There was no distinctioc between sections 4 and 5 of the Act as regarded a ever, affirmed the decision of the Master of the Rolle, on the ground that the writing being required. Whether it was an agreement or a memorandum or a composition arrangement proceeded upon the basis that the creditor was to note thereof on the one hand, or a will on the other, there must be a writing. receive the composition upon £1,600 only, and that the surplus of the property and it must be signed by the party sought to be charged. His lordship did comprised in both securities beyond the £800 should go to the debtors to not see how a description which would be sufficient within one section could be enable them to pay the composition. BAGGALLAY, L.J., said that the language considered insufficient within the other. The question was whether there was of the creditor's proof clearly indicated that he valued bis compound security, a sufficient description of the thing sold or purchased, for there could not be bis security on the separate property as well as bis security on the joint prop. A description in writing per se, which would entirely shut out all controversy. erty. No doubt be was not bound to value his separate security. But, so Even a map would not do that. No description in the world could be so far from there having been any mistake about it, the wbole thing was clearly complete as to cover all points and prevent any dispute from arising ; and it present to his mind. And, in his answer to interrogatories in the present action, was not the object of the Statute of Frauds to prevent the possibility of dispute, the creditor said that his sole object in making the valuation was to enable the but by requiring a writing to be signed to impose & check and nothing more. debtors to know what was the amount of the liabilities for which they would There must of neeessity be many things to be decided by parol evidence. If have to provide. The effect of an alteration in the proof would have been to you had as a description “the estate of A. B., in the county of C.," the estate increase the amount of the balance on which the debtors would have to pro would be sufficiently described ; or, again, if you had “the estate of A. B., vide the composition, and at the same time to diminish the amount of the wbich he purchased from C.," or "which was bequeathed to him by D.,” that assets which would enable them to pay it. The composition arrangement would do, and you might introduce parol evidence to show what the property proceeded on the faith that the representations made by the creditor in his was. In the present case the written documents stated that the property was proof would be binding on him, and it was too late now to distorb it. Lush, on a given day sold at a given place to the plaintiff for the price of £420, and L.J., said that a secured creditor was not bound to take any part in the coins that the property belonged to the defendant. How could it be said that position proceedings. But, if be valued his security and proved for the there was not an ample description of the subject-matter of the contract? It balance of his debt above the amount of the valuation, he was bound by was quite true that there might be a dispute, as there might be about any. the valuation, wbatever might be the result of the realization. lothing, but here there was not only all that was required, but more that was the present case the creditor clearly intended to value both his joint and his required to identify the property. BAGGALLAY, L.J., and Lush, L.J., conseparate security. He was not bound to deduct the value of the separate curred.-SOLICITORS, Berry & Binns ; Stevens & Co. secority, but he did deduct it, and the consequence was that the secority was redeemable at the price which he had put on it. The proof was put in before the composition was accepted. The debtors agreed to pay 108. in the pound,
COVENANT-BREACH-INJUNCTION-COVENANT TO CARRY ON TRADE OF If the creditor bad valued his joint security only, the amount of the debts upon
CHEMIST AND DRUGGIST.- In a case of Mitchell v. Walker, before Chitty, J., which the composition would have to be paid would to that extent have been on the 13th inst., a motion was made to restrain the defendant from locreased, and for aught that appeared the debtors would not have been able carrying on the business of a quack doctor 10 certain premises let to him. to pay the composition on the larger amount. At any rate, the arrangement or any other business than tuat of & chemist and druggist. It was alleged proceeeded on the footing that they would only have to provide the composi. | that at the time the premises were lot to the defendant it was understood that tion for the secured creditor on $1.600. and it was too late now to disturb it. be was to carry on the business of a chemist and draggist only. It appeared LINDLEY, L.J., said that it would be inequitable now to allow the creditor to
that he had filled his window with advertisements of various quack medicines, fall back ou the separate security which he had given up, the composition
and that he called his shop a medical repository. CHITTY, J., granted an proceeding on the footing of his so doing.-SOLICITORS, C. Butcher ; Tatham, injunction to restrain the defendant from using the premises otherwise tban Oblein, & Nash.
as a chemist and druggist. He considered, on the evidence, that there was an express condition they were to be used for that purpose only, and on the plain
tiff's undertaking in damages, considered him entitled to the injunction until MINE-TRESPASS—UNAUTHORIZED WORKING—ACCOUNT-ALLOWANCES
the trial.-SOLICITORS, Paterson, Snow, & Bloxam, COST OF BRINGING TO BANK.-In a case of Joicey v. Dickinson, before the Court of Appeal on the 10th inst., a question arose as to the allowances which ought to be made to a person who had knowingly taken minerals out INFANT WARD-RELIGIOUS BELIEF-RELIGION OF FATHER-CONTEMPTof a mine belonging to a neighbouring owner, in taking an account against INDUCING TO CHANGE RELIGION.-In a case of Hickman v. Hickman, before the wrongdoer of the value of the minerals which he had thus abstracted. Chitty, J., on the 9th inst., a motion was made to restrain an infant ward Jeesel, M.R., had disallowed the defendant (the wrongdoer) not only the costs from visiting a Roman Catholic chapel, and a Roman Catholic priest from cf severing the minerals, but also the costs of raising them to the surface, writing to the infant. The infant was sent to a school, and the father, who