Page images
PDF

The Solicitors' Journal.

LONDON, DECEMBER 31, 1881.

CURRENT TOPICS.

The Chambers of Vice-Chancellor Bacon have been removed to the Royal Courts of Justice.

It Is Understood that Lord Justice Breti's amendment to the recommendation for shortening the Long Vacation which was submitted by Lord Coleridge to the Council of Judges, was carried by a majority of twenty to four.

The Sittings Taper of the Chancery Division for the Hilary Sittings, 1882, which we print in another column, extends over seventy-three working days from the 11th of January to the 5th of April. During a portion of that time Mr. Justice Ciiitty will be absent on circuit, and the work appointed for him will be taken during his Hbscnce by Mr. Justice Kay, while Mr. Justice Masisty will, during the same period, take that appointed for Mr. Justice Kay.

Mr. Henry II. Fowler, who writes to the Times on the subject of the Long Vacation, and says that there are " 127 days during which the Courts of Justice in this country are practically shut," rather understates his case. Adding Sundays, there are in the year 1G1 such days, and the days on which the courts sit amount to 204. He also mistakes in saying that " these unrivalled vacations are the exclusive privileges of the judges, the paid officials, and the suitors." Without counting Sundays, the vacations of the paid officials, other than judges, amounted in 1881 only to eighty-five days; and during everyone of those eightyfive days, with the exception of about five, the offices were open for vacation business.

An Interesting Question as to what are "vermin" has recently been raised in Scotland. The Gun Licence Act, 1870, which requires a yearly licence to be taken out by every person who shall use or carry a gun, and imposes a penalty of £ 10 for using or carrying a gun elsewhere than in a dwelling-house or the curtilage thereof without having a licence, provides (section 7) that the penalty shall not be incurred "by the occupier of any lands using or carrying a gun for the purpose only of scaring birds or of killing vermin on such lands." In the case referred to the penalty was attempted to be enforced against an occupier of land at Jedburgh, who had shot wood pigeons on such land without having taken out a gun licence. The justices before whom the complaint was brought dismissed it, and, therefore, must be presumed to have held that wood pigeons are vermin. We arc not aware of any authoritative and exhaustive definition of vermin. It is a word which, we should imagine, varies considerably in its meaning according to the ideas of the age in which, and of the class by whom, it is used. In Qedge v. Minne (2 Buls. 60), the court called a fox "a beast or vermin," but then that was in the dark ages when it was deemed that a fox is "a noisome creature to the commonwealth" (see Milieu \. Fandrye, Bop. 161). A badger was j til-scribed in the case in Bulstrode as "a noysome vermin." But 1 we should doubt whether any one in anyT age or of any class would describe a wood pigeon as vermin; and it is to be observed that the exception in the Gun Licence Act expressly distinguishes between scaring " birds" and killing "vermin."

stood without some explanation of the circumstances under which they were arrived at. Last session, in the course of the discussion in committee of the Judicature Act Amendment Bill, the AttorneyGeneral, while opposing an amendment which proposed to shorten the Long Vacation by fourteen days, on the ground that the judges had not been consulted, undertook that the whole subject of legal vacations should be considered and brought before the House next year. It was no doubt with a view to assist the Government in this consideration that the matter was submitted to the Council of Judges. Lord Coleridge placed six motions on the agenda, of which the first was in the following terms :— "That the Trinity Sittings of the High Court and of the Court of Appeal end for the future on the 10th of August; and that the Michaelmas Sittings of the High Court and of the Court of Appeal begin for the future on the 24th of October." The other five motions related to judicial sittings during the Long Vacation. Upon the first motion being put, an amendment in the terms we printed last week was moved by Lord Justice Brett, and carried by a very large majority-, and the remaining five resolutions were then withdrawn. This decision will, we think, be generally looked upon as ill-advised. It is clear that matters cannot long remain in their present condition. The Government are pledged to bring the question forward next session, and it cannot be doubted that Parliament will legislate in the interest of the suitors rather than of the judges and officers of the courts. We doubt whether the judges will obtain any very hearty support from the profession in their resistance to a moderate change, for although all of them but two still enjoy to the full their long holiday, comparatively few members of the profession do so. To the great mass of lawyers it will matter little if the vacation is slightly abridged, for as regards the bar and the solicitors it has already been broken in upon. All through it there are one or two judges sitting in public once or twice a week, with long lists of causes and a crowded bar, not to speak of sittings in chambers. In spite of the rigorous terms of the vacation notices that no case will be placed on the court paper unless leave has been previously obtained, on a certi. ficate of counsel that the case requires to be immediately or promptly heard, and stating the reasons, the vacation business has increased with extraordinary rapidity7. During the last Long Vacation over 200 more orders were made than in any previous vacation, and the work was so pressing that, at one period, public sittings were held during every week day. The recommendations of the judges ignore these facts. They read as if we were still in the times when, in order to get an injunction, a Vice-Chancellor had to be sought for in his rural seclusion. The fact is that "the habits of the majority of people interested in such a question," upon which the judges lay so much stress, have changed and are changing, and even judges will have to adapt themselves to the new order of things.

The Full Import of the resolutions relating to the Long "Vacation, passed by the Council of Judges, will not be under^

The Mischievous Person who raised a groundless alarm of fire at the Grecian Theatre on Tuesday evening might advantageously study the report of the recent case of Jleg. v. Martin (30 W. 11. 106). The prisoner, with the intention of alarming the audience at a theatre, extinguished the lights and placed an iron bar across one of the doors. A panic ensued upon the sudden darkness; a rush was made for the street, and two persons were injured through being pressed against the bar whieh had been placed in the doorway. The jury found that the prisoner had extinguished the lights and placed the bar in the doorway with the intention of wilfully obstructing the means of egress from the gallery, and the court held that he had been rigluly convicted of maliciously inflicting grievous bodily harm within 24 & 25 Vict, c. 100, s. 20. The placing of the bar in the doorway was an important clement in this case; but if the injuries had been caused by crushing or trampling the finding as to the prisoner's intention in putting out the gas would doubtless have supported the conviction. It is to be observed that the Recorder of Leeds had directed the jury to acquit the prisoner if they thought that his proceedings "amounted to nothing more than a piece of foolish mischief"; but Mr. Justice Stephen said that this direction "put the case too high in favour of the prisoner," and he cited with approval the dictum of Lord Blackburn in Peg. v. Pembleton (22 W. R. 555), that malice may be deemed to exist "where any person does an act injurious to another without lawful excuse." This principle appears to be applicable either to putting out the gas in a theatre or to raising a false alaim of fire, since every person is presumed to contemplate the necessary consequences of his own acts.

The Fate which befell an appellant in a bankruptcy case of See parte McWade, which came before the Court of Appeal (Lord Coleridge, C.J., and Baggallat and Lindley. L.JJ.) on the 20th inst., may serve to show what a trap for the unwary is laid by the Bankruptcy Rules 143 and 144 of. 1870, which, though they have never been formally repealed, have, in consequence of the rules under the Judicature Acts, ceased to govern the practice in relation to appeals from the Chief Judge in Bankruptcy to the Court of Appeal, though they remain in full force as regards appeals from the county courts to the Chief Judge. Rule 143 provides that " an appeal against a decision or order of the Chief Judge in Bankruptcy, or a judge of a county court, shall be entered with the registrar of appeals within and not later than twenty-one days from the said decision or order, by leaving with him a copy of the appeal notice of motion." And by rule 144, "Upon entering an appeal, a copy of the appeal notice shall be sent forthwith by the appellant to the registrar of the court appealed from, who shall forthwith file the same with the proceedings, and a similar notice shall be delivered by the appellant to each respondent four days before the day on which he intends to move." The appellant in Ex parte McWade (who appeared in person) had complied strictly with these rules, but he had omitted to give to the respondent a notice of the appeal within the twenty-one days prescribed by rules 9 and 15 of order 58 under the Judicature Act. The preliminary objection was taken that the appeal was too late, and the court held that, following the decisions in Ex parte Viney (25 \V. R. 304, L. R. 4 Ch. D. 794), and Ex parte Saffery (25 \V. R. 572, L. R. 5 Ch. D. 305), they could only dismiss the appeal. It is, however, very mucli to be regretted that it should be possible for a suitor to be thus misled with regard to the practice of the courts, and we have no doubt that if the matter were brought to the attention of the Lord Chancellor, he would take the necessary steps to prevent the recurrence of such mistakes. It is by no means creditable to the administration of justice that they should be possible.

We Have Often Expressed our opinion that the decision in Phillips v. Rtnson (20 W. R. 214, L. R. 3 C. P. D. 20) was wrong. In that case Grove, J., denned a lodger within the Lodgers' Goods Protection Act as being "a person not contracting with the landlord, hut who is in a subordinate position to the landlord, does not owe him rent, and hetween whom and the landlord there is no privity." According to this definition the Act is applicable to the case of every under-tenant. In commenting on Phillips v. Henson (22 Solicitors' Journal, 300) we ventured to point out that the question really was whether the plaintiff was a lodger according to the ordinary popular meaning of the term, and in the recent case of Morton v. Palmer (30 \V. E. 115) we find Brett, L.J., using similar language. The word " lodger," he says, must "mean a lodger according to the understanding of the majority of persons conversant with letting in this country." And he lays down as one test of whether a person is a lodger, the question whether the person letting retains the position of master of the house. "He need not, in my opinion, live or sleep in the house, but he must have reserved such power as the master of a house ordinarily does. If, however, he has gone away, and given up such power, the person let into possession is hot a lodger." It is clear that the agreement for letting in

Phillips v. Henson would, in this view, have excluded the plaintiff from the category of lodgers. That case may, therefore, be taken to have been overruled.

It Appears that the portion of the new Patent Bill on which we recently commented is to be withdrawn, and, in lieu of it, it is to be provided—first, that it shall be the duty of the commissioners to act as arbitrators to litigants; secondly, that the courts, whenever they have power under the Judicature Act to refer a patent action to a special referee, shall remit it to the three commissioners; and, thirdly, whenever the courts have power to call in assessors, they shall have power to call upon the commissioners, or any of them, to act as assessors. These are much more reasonable provisions, and proceed on the lines we ventured to indicate of attempting to improve the existing procedure, instead of proposing to sweep it away and establish a special court for patent causes.

IMPLIED WARRANTY ON SALE OR HIRE OF CHATTELS.

The case of Robertson v. The Amazon Tug and Lighterage Company (L. R. 7 Q. B. D. 598) raised a question of much general importance, which can hardly be considered as satisfactorily solved even now, having regard to the fact that a difference of opinion arose in the Court of Appeal, Bramwell, L.J., being of the contrary opinion to that of Brett and Cotton, L.JJ. The question involved appears to have been whether any implied warranty of the quality or condition of a specific chattel arises upon a contract for the hire of such chattel, and if so, to what such warranty amounts. The circumstances of the particular case were no doubt somewhat special, it not being exactly the case of hiring a chattel. The plaintiff contracted with the defendants to act as master of a specified steam-tug upon a certain expedition for a lump sum, he paying the crew and finding provisions. In consequence of the boilers of the tug being in a defective condition the expedition took longer than it otherwise would have done, and so the plaintiffs profit was much diminished. It seems to us that much the same considerations are involved as in the case of a contract of hire, and the discussion that took place dealt to a great extent with the doctrines that would be applicable to such a contract.

If we rightly apprehend the view taken by Bramwell, L.J., it was this: he seems to have been of opinion that, though on the hire of a specific chattel there is no implied warranty as to the nature and character of the thing hired, assuming it to be in a reasonably good and perfect condition, there is, at any rate to some extent, an implied warranty as to its condition. For instance, the tug in question might be a weak and originally badly constructed tug, with inadequate machinery. That would give no right of action, because there was no warranty as to her nature and character, but if there was a hole in her bottom or she had no rudder, then there would be a right of action, because there is an implied undertaking that the article supplied is in a state as fit for the purpose for which it is supplied as care and skill can make it. There is no doubt that in the case of a contract for the hire of a non-specific chattel for a particular purpose, specific to the party letting the chattel, there is an implied warranty of the nature suggested, and the learned Lord Justice seems disposed to go further and hold that there may be such a warranty in the ease of the hire of a specific chattel. The case of Francis v. Cocknll (L. R. 5 Q. B. 184, 501) does not appear to have been cited in the argument of the case we are discussing, but the decision appears to be very material to Lord Justice Bramwell's view. That was the case in which it was held that a person who caused a stand to be erected at some races was liable for injuries caused by its downfall to a person who paid for admission thereto, the stand having been inadequately and negligently constructed by a sub-contractor. Keily, C.B., there says that, as a general rule, where one man engages with another to supply him with a particular article or thing, to be applied to a certain use and purpose, in consideration of a pecuniary payment, he enters into an implied contract that the article or thing shall be reasonably fit for the purpose for which it is to be used, subject to the exception established by Redhead v. Midland Railway Company (L. R. 4 Q. B. 379) as to cases of a latent defect undiscoverable by the exertion of any reasonable skill and diligence. It seems to us that it would have been desirable that this case should have been brought to the notice of the Court of Appeal. All the judges in the Exchequer Chamber 6eemed clear that there was no absolute warranty of the condition of the stand; so the way in which Lord Justice Bramwell limited the warranty, as applied to cases of hire, seems correct; but no distinction appears to have been drawn by the judges in Francis v. Cockrell between a contract to let a specific and to let a non-specific chattel. The stand was, we take it, specific enough. It may be urged that the case is different from that which we are discussing, the action in Francis v. Cockrell being for personal injuries, and that the decision rather rests on the duty towards persons trusting themselves on the stand than on warranty. We have some difficulty, however, in seeing any sound distinction in this respect. There was no actual negligence on the defendant's part in Francis v. Cockrell, and the question must have turned on what the implied undertaking was, and whether the damages arising were personal or pecuniary does not seem material. The decisions in Smith v. Marrable (11 if. & W. 5) and Wilson v, Finch-Hatton (L. R. 2 Ex. D. 336) are, unless some peculiar distinction attaches to the case of a contract to let a furnished house, favourable to the view expressed by Lord Justice Bramwell. Brett and Cotton, L.JJ., both appear to have held that there is no warranty to be implied on the letting of a specific chattel. It may be observed that Brett, L.J., does not cite a single authority in the course of his judgment. Cotton, L.J., does refer to Smith v. Marrable and Wilson v. Finch-Hatton, distinguishing them on a ground which we cannot quite understand. He says that in those cases the defendant was defending himself against an action for refusing to perform his part of the contract by reason of the non-f ultilment of a condition, whereas in the case before him the plaintiff was suing for damages, and must establish a warranty. But surely in all cases of condition precedent the condition is, if the contract is executed, available as a warranty.

We must say that the point involved in the case we are discussing seems one of considerable difficulty on the authorities, but that seems to us to arise from the fact that the whole subject of these implied warranties arising on sale or hire of chattels appears never to have been treated in a comprehensive way. For instance, is there any sound distinction in this respect between contracts of letting and hire and contracts of sale? This never seems to have been thoroughly considered. The judgment in the case of Jones v. Just (L. R. 3 Q. B. D. 197) deals at some length with the question, under what circumstances an implied warranty arises on the sale of a chattel, but there is no attempt to evolve one general proposition from the cases. The authorities there cited (see p. 202) certainly seem to show that, in general, when a specific ascertained chattel, which the vendee could have inspected if he chose, is sold, the maxim "caveat emptor" applies, and there is no implied warranty. It would appear that this may be so even if the purpose for which the thing is wanted is mentioned or known to the vendor in the case of a sale. In Emmerton v. Matthews (7 H. & N. 586) the sale was of specific meat, and the presumption surely is that meat is bought to be eaten. Chanter v. Hopkins (4 M. k W. 399) and Ollivant v. Bayley (5 Q. B. 288), though not cases of sales of specific chattels, both seem to involve a somewhat similar principle, for in those cases, though the purpose for which the article was required was stated, the article being one of a well-known and defined description, it was held to be sufficient that it answered that description, though unfit for the purpose specified.

It seems to us, however, that perhaps the true general principle to be elicited from the various cases is that the question whether there is an implied warranty or not depends on whether the article supplied is supplied under such circumstances as that the party supplying it knows or ought to think that the party to whom it is supplied is relying on the judgment of the party supplying it, or under such circumstances as to lead to the inference that the party to whom it is supplied relies on his own judgment. The various circumstances relied on in the different cases are, perhaps, if rightly considered, only material as determining the answer to this question. For instance, if a manufacturer or tradesman sells

me an article, whether specific or otherwise, very different considerations arise from those which arise if I buy a similar article from a friend. The difference between the considerations in the two cases entirely depends, as it seems to us, on the principle we have indicated. The same might be said in relation to other considerations, such as that arising from opportunity of inspection. We should apply the same test both to cases of sale and hire. In the case of the stand {Francis v. Cockrell), for instance, was it reasonable to suppose that the person buying a ticket exercised his own judgment as to the stability of the stand? It seems to us that it may, on consideration, turn out that the fact that the article is specific is only one clement, though, no doubt, it may be a very important element, in determining the question whether there is an implied warranty. We do not feel convinced, if the matter ever came to be argued out, that the fact that the chattel supplied is a specific chattel is always or necessarily conclusive that there is no implied warranty. The case of Shepherd v. Pybus (3 M. & G. 868) seems, to some extent, at least, to be an authority that the question whether the sale is of a specific chattel is not the sole test, for the judgment in that case seems to dwell upon the question whether the buyer had had an opportunity of inspection, and relied on his own judgment or not, rather than on the question of specific or non-specific chattel.

We cannot think that the judgment of the Court of Appeal in the case we are discussing satisfactorily deals with the general principles involved with regard to implied warranty. We are not prepared to suggest that the judgment of the majority in the particular case is wrong. The circumstances were peculiar and possibly they rightly gave rise to the inference that the plaintiff, having an opportunity for inspecting the tug, took the vessel for what it was worth. But it seems to us possible that the judgment, owing to the generality of the terms employed, may be taken to decide a good deal more than was necessary for the purposes of the particular case. We doubt very much whether the majority of the court intended to decide that the fact of the chattel being specific was necessarily and in itself conclusive, and whether some of the terms of their judgments ought not to be somewhat limited by reference to the subject-matter.

BANKRUPTCY LAW REFORM.

[communicated.]
V.

Inasmuch as it is proposed to abolish entirely the present system of liquidation aud composition arrangements, it of course becomes necessary to provide some other method of carrying out composition arrangement, so as to be binding upon non-assenting minorities of creditors. This the Government Bill proposes to do only after an adjudication in bankruptcy has been made against the debtor. The clause containing the Government proposals is the one we next come to—viz., clause 19—aud we print it at length before commenting upon it.

"Clause 19.—(1.) The oreditors may, at the first or aDy subsequent meeting, pass a preliminary special resolution that a composition be accepted ill satisfaction of the debts due to them from the bankrupt, or that a schema of arrangement of the bankrupt's affairs be approved.

"(2.) The preliminary resolution shall not hare effeot unlesa it is confirmed by a subsequent ordinary resolution, and the confirming resolution shall not be passed until the bankrupt has passed his public examination, nor unless there has been circulated among the oreditors, not less than three days before the meeting at which it is to be passed, a notioe stating generally the terms of the proposal for the composition or soheme, and a report of the official receiver as to the proposal.

"(3.) A composition under this section shall not be valid unless it provides for payment of not less than five shillings in the pound.

"(4.) When the confirming resolution has been passed, the official receiver shall report to the court as to the composition or soheme, and if the court is of opinion either that the terms of the composition or soheme are not reasonable, or not calculated to benefit the general body of oreditors under the bankruptcy, or that the bankrupt has committed any suoh misconduct as would justify the oourt in refusing, qualifying, or suspending his disoharge, the court may refuse to approve the composition or soheme, but otherwise shall approve it, and the approval may be testified by the judge of the court signing the instrument containing the terms of the composition or scheme, or embodying the terms in an order of the oourt.

"(5.) A composition or soheme so approved by the oourt shall be binding on all the creditors, so far as relates to any debts due to them and proveable under the bankruptcy.

"(6.) The approval of the court shall be conclusive as to the validity of the composition or soheme.

"(7.) The provisions of any composition or sohemo under this section may bo enforced by the oourt on a motion made in a summary manner by any person interested, and any disobedience of an order of the court made on tho motion shall be deemed a contempt of oourt.

"(8.) If the bankrupt, whether his bankruptcy is olosed or not, makes default in payment of any sum due in pursnanoe of a composition or sobeme under this section, the ooUrt shall, on application by the person to whom the sum is due, order that the bankruptcy be revived, and thereupon the bankruptcy shall be revived and continue as if the composition or sobeme had not been approved."

Sub-clauses 1 and 2.—The proposal that the preliminary resolution is to be special and the confirmatory ono merely ordinary is almost, but not quite, following the provisions of section 126 of the Act of 1869, that section requiring the confirmatory resolution to be passed by a majority in number as well as value, This is reversing the order of things laid down in section 110 of the Act of 1861, which required the first resolution to be passed by the major part in value only of the creditors present, but provided that the confirmatory resolution must be passed by a majority in number representing three-fourths in value. Setting the one provision against the other, we very much prefer that of 1861, as we think it is the last and more considered resolution of the creditors that should be passed by the greater majority. But we strongly think that it would be much more desirable to require a special resolution to be passed at each meeting, and we would even go further and require the confirmatory resolution to be passed by a majority in number representing threefourths in value of the total creditors, whether present or not. With regard to the latter part of sub-clause 2, we think that more than three days should be required to be given to the creditors to consider the proposal, and, if necessary, to confer with each other thereon. Why not six days as at present?

Sub-clause 3.—Some such provision appears to be called for to prevent whitewashing cases by nominal compositions, and in this view the limit of five shillings in the pound appears reasonable.

Sub-clause 4.—This proposal seems to be an attempt to enact the principles laid down by the Court of Appeal in the case of He Durham ctb Co. (29 W. R. 363, L. E. 16 Oh. D. 623), as those which should govern the court in deciding as to whether it will approve of a scheme of arrangement uuder section 28 of the Aot of 1869. If the views taken by the Court of Appeal iu that case are approved of by the Legislature, it is well that they should be specially enacted so as to avoid uncertainty in the future. But it appears to us to be going rather far to give the court such a parental control over the actions of creditors, as though they were not able to settle their own affairs. It is just this interference that in former times was complained of by creditors, and may be so again.

Sub-clauses 5 and 6.—These are a decided improvement on the provisions of section 126, sub-section 7, and section 127 of the present Act. Sub-section 7 of section 126 provides that a composition shall be binding only on such creditors as are included in the statement of affairs, and consequently makes it dangerous to effect compositions under that section, it having been held that comparatively slight inaccuracies iu the statement of affairs aro sufficient to render a composition not binding upon the creditors not correctly stated.

Sub-clause 7 proposes to re-enact a provision in sections 28 and 126 of the present Act. We have always thought the wording of the proviso vague and unsatisfactory, and in practice, after trying it in several cases in the early stages of the Act, have entirely ceased to proceed under it, and this we believe is also tho experience of many other practitioners. It has never been clear to us against Whom the provisions of a composition are to be enforced. If against a debtor only, then We think the proposal in the following sub-clause much more reasonable and (it beiug a new suggestion) that it might well be substituted for this. It appears unnecessary to make both provisions.

Sub-clause 8.—This proposal will, we think, be likely to work well in substitution for the previous sub-clause. Some provision ought, however, to be made, so as not to prejudice new creditors who may have trusted a debtor on the strength of his having made an arrangement with his creditors under the sanction of the court. Unless some such provision be made, then such new creditors will stand in the position of losing their debts without even having the right of proving upon the estate aud taking a dividend along with the old creditors. This would be a manifest injustice, aud, to our mind, they ought to bo paid out of the assets in priority to, instead of beiug placed in a worse position than, the old creditors.

Clauses 20—26 deal with trustees of bankrupt properties, aud contain a number of new and most important proposals. Clause 20 is as follows:—

"Clause 20.—(1.) The creditors mry, at the first meeting, or at an adjournment thereof, by ordinary resolution, appoint some fit person, whether a creditor or not, to fill ihe office of trustee of the property of the bankrupt, and, subject to the provi.ions of this Act, fix his remuneration; or th-y miy resolve to leave his appointment to the committee of inspection appointed as hereinafter mentioned.

"(2.) The person so appointed shall give security to the satisfaction of the Board of Trade, and thereupon the Board shill certify tlmt his appointment has been doly made, unless they object to the appointment on the ground that it has not been made in good faith by a majority of the creditors, or that the

person appointed is not fit to net as trustco, or that his connecti n with or relation to tho brnkrupt or his estate or any particular creditor makes it improbable that he will act in the interests of the credi'ors generally.

"(3.) If tbe Board of Trade make any such objection, tliey may refer th» matter back to the creditors, and, unless the objection is removed, tbey shall notify it to the court, and thereupon the court may decide on the validity of the objection.

"(4.) The appointment shnll take effect as from the date of the certiflca'r.

"(5.) Where tho assets under a bankruptcy petition do not exceed three thousand pounds, the remuneration of a trustee appointed as aforesaid shall not exceed tbe scale set forth in the first schedule to this Act.

"(6.) Where the assets exceed three thousandpounds, the Board of Trade, may, on a special report of tbe committee of inspection, or of a majority in value of tho creditors, allow out of tho estate a fitting remuneration to a trustee appointed as aforesaid.

"(7.) In either case tbe Board may, on a special report of tbe committee of inspection, or of a majority in value of the creditors, setting forth the special services which have been rendered by the trustee, or other special circumstances, order an additional remuneration to be allowed to him out of the estate.

"(8.) The Board may from time to time, with the consent of the Treasury, alter the scale of remuneration in the first schedule to this Act.

"(9.) The creditors may, if tbey so desire, appoint the official receiver of the bankrupt's estate to be trustee of the property of the bankrupt.

"(10.) If the creditors or committee of inspection do not appoint a trustee within the prescribed time after the adjudication, the official receiver for the time being shall become, and be deemed to be appointed by tbe Board of Trade, the trustee in the bankruptcy.

"(11.) Provided that tbe creditors or committee of inspection may, at any subsequent time, if thry think fit, appoint a trustee, and upon the appointment being made and certified, the person appointed shall become trustee in the place of th» official receiver.

"(12.) If the official receiver is appointed trustee he shall have remuneration as hereinafter mentioned."

Sub-clause 1.—The only change from the present law proposed by this sub-clause is that the power of the oreditors to fix the remuneration is to be subject to the provisions of the Act. It is, in our opinion, a very proper proposal to place some restriction upon the power of creditors to allow remuneration to a trustee, aud we will treat of the proposals under the heads of the sub-clauses containing the same.

Sub-clauses 2, 3, aud 4.—We heartily approve of the proposal that all trustees should give seourity to the satisfaction of some independent body, whether the Board of Trade or any other body. This will do more than anything else to stamp out that class of adventurers who, failing in other methods of gaining a livelihood, style themselves accountants and go in for trusteeship?, and who have been the chief cause of briugiug discredit upon the present system. As to tho proposal to give the court, on objection made by the Board of Trade, power to override the appointment of a trustee, this power formerly lay in the court, and it may be well, in order to prevent the control of an estate from going into the bands of parties whose interests might be against the impartial administration thereof, that it should bo re-enacted ; but at the same time consideration should be given as to whether it will not give rise to a great amount of litigation upon tho appointment of trustees which may probably raise an evil as bad as, if not worse than, tho ouo sought to be remedied.

Sub-clause 5.—The first schedule to the Bill is as follows :—

"Scalb Of Remuneration. "(a.) For property realized, including debts collected—

"2J per cent, on the first amount of £500 or any less sum; "1 per cent, on the next amount of £500 or any less sum; "J per cent, on all further sums. "(*.) On dividend—

"2 per cent, on the first amount of £1,000 or any less sum; "1 per cent, on all further sums. "Where the property has been realized partly by a receiver and partly by tho trustee, the remuneration for property realized shall be divided in proportion to the amount realized by eaoh."

The scale of remuneration provided by this schedule appears to us to be absurdly low, and we think no respectable accountant could be got to undertake the work at the price. At the same time it is only right that some limit should be put upon the remuneration to be allowed to a trustee. The sub-clause says that the remuneration "shall not exceed," &c. This would seem to fix a hard and fast line, but sub-clause 7 saya that "in either case," presumedly either of the cases mentioned in this and the following sub-clauses, "the Board may . . . Order an additional remuneration," 4c, which would seem to give power to the Board to go beyond this sub-clause. Whichever is intended ought to be more clearly stated. Then, again, sub-clause 8 gives power to the Board of Trade to alter the scale of fees fixed by the first schedule. This may probably get rid of the difficulty if too low a rate is fixed in tho first instance, and perhaps it may be as well not to incur the danger of fixing too high a rate to begin with.

Sub-clause 6.—We think the power to grant a fitting remuneration to a trustee ought to be more independent of the committee of inspection or the creditors. Why should not the power be given on the application of a trustee, and simply requiring him first to submit the same to the committee or creditor.", whose views either for or against should of course be considered by the Board of Trade In deciding the question?

Sub-clauses 7 and 8.—We have anticipated these sub-clauses in our remarks upon the two hut preceding sub-clauses.

Sub-clause 9.—This is a power which we think is included in subclause I. The form of the Bill would be improved, in our opinion, if the two suh-clauses were incorporated into one by inserting iu the third line of sub-clause 1, after the word "creditor," the words, "the official receiver."

Sub-clauses 10, 11, and 12.—These appear desirable if the principle of the Bill is to be adhered to. We have only to suggest that in subclause 11, after the word "inspection" in the first line thereof, the word", "if the appointment of a trustee should have been left to them as provided by sub-section 1 hereof," should be inserted within brackets to make the presumed intention more clear.

CORRESPONDENCE.

THE CONVEYANCING ACT, 1881. [To the Editor of the Solicitors' Journal.'] Sir,—Persons who hold two or more mortgages by the same mortgagee, one of which happens to be a deficient security, will be disagreeably astonished by the suggestion in your article of this week, that under section 65 of the Conveyancing Act they may be jockeyed out of their right to consolidate, to which they have been fondly trusting to save themselves from loss. It would be desirable to know from the framers of the Act whether, as you suggest, this possiblo consequence of the Act has escaped their notice. T. H. P.

[To the Editor of the Solicitors' Journal.']

Sir,—In Messrs. Wolstenholme and Turuer's book on this Act it is stated (p. a, par. g) that no mention of the executors, administrators, and assigns of a covenantor or covenantee will be required, and sec tions 58, 59, and 60 of the Act are referred to.

But what difference does the Act make as to mentioning the executors, 4c, of a covenantee in the case of covenants not relating to laud, as, for instance, a covenant in a mortgage of an insurance policy to keep up the policy?

Hitherto it has certainly always been usual, whether necessary or not, to covenant with the mortgagee, his executors, administrators, and assigns, and I am unable to see that the Act makes any difference iu this respect, section 58 being entirely confined to covenants relating to load. C.

SHERIFFS AND THEIR OFFICERS.

[To the Editor of the Solicitors' Journal.]

Sir,—It will be recollected that I recently intimated my intention to bring under the notice of the Court of Common Council the delay and difficulty to which, in many cases, judgment creditors are subjected in obtaining from sheriffs' officers the proceeds of executions. The notice of my motion appeared for some time on the business paper of the court, and on its being reached I was somewhat summarily precluded from moving it, or from stating the grounds upon which I considered the matter could be investigated, by the Lord Mayor's ruling that the corporation (as of courso I was well aware) had 110 jurisdiction over sheriffs' officers, and could not therefore entertain the motion. It had not been previously intimated to me that my motion was in any way thought to be out of order, and I had no reason to suppose that I should be deprived of the opportunity of stating to the court some of tho cases which had been communicated to me, in which citizens of London, as well as others, had been seriously prejudiced by the irregular action of sheriffs' officers.

The Court of Common Council has from time to time directed its attention to questions affecting, not only the citizens of Loudon, but those who reside outside the limits of the City, and I am persuaded that if I bad been permitted to introduce this matter to the notice of the court, it would hare been rendering a useful service by inquiring into the existence of the alleged delny and expense, and making, as I have no doubt it would have made, such suggestions as would, when adopted, have been likely to insure to execution creditors tliat complete administration of justice which is so essential to the preservation of the rights of property, and those which are common to every ordinary contract.

The matter is, however, of too much importance to be dropped, and the communications which I have received are such ns to compel me to go forward, aud while I regret that I shall probably not be able to make available the machinery which the Court of Common Council, through its Law and City Courts Committee, possesses for dealing by way of inquiry and recommendation with a matter of this kind, yet I beg

to state that I have been invited to read a paper on the question before the United Law Students' Society, on the 18th of January, at their hall in Clement's-inn, the result of which, I hope, will be the adoption by them of some resolution which will lead to effective action being taken to relieve execution creditors from that partial deprivation of their just rights, which, through no fault of their own, but exclusively from that of others through whose hands their moneys must pass, they are still so improperly suffering. W. J. Eraser.

2, Soho-square, W., December 28.

REFORM IN LEGAL PROCEDURE.

[To the Editor of the Solicitors' Journal.]

Sir,—I should be glad if you will give publicity to the following suggestions for amendment of the Judicature Rules :—

1. To assign actions to the lists of particular mastors will be productive of inconvenience, unless at the same time particular masters are selected for regular and constant attendance at chambers. The dispatch of business will be more satisfactory when there is a proper division of labour amongst the masters. The present rotation does not tend to uniformity of practice or to expedite proceedings.

2. Unnecessary cost and delay are caused by requiring an order for an affidavit of documents. Such an order is made as of course. Interrogatories may now be delivered without an order.

The rule affirmed by the deoision in Bewicke v. Graham (L. R. 7 Q. B. D. 400) ought to be abolished. Except in cases of alleged fraud or involving the title to property there ought not to be any privilege for documents which can be given in evidence by their custodian.

Even an affidavit of documents appears unnecessary, and, unless necessary, an affidavit ought not to bo required. The defendant might be bound to deliver in or with his defence a statement signed by himself or his solicitor of what documents he has relating to the matters iu question, and the plaintiff be bound to deliver a similar statement with his reply, aud either party should be at liberty to call upon his opponent to make oath as to any particular documents (not included in his statement) supposed to be in his possession or power, the party applying for it being saddled with the costs of the affidavit, unless he satisfies the taxing officer that the documents asked for were material, and that there was reasonable ground for believing same to be in tho power of the other side.

3. To a practitioner it appears there would be negligence in omitting to require inspection of documents, and it is obligatory to give such inspection. This being so, the practice as to the costs of inspection settled in Brown v. Seivell (L. R. 16 Cb. D. 517) appears to be unjust.

4. A suitor ought not to bo obliged to produce his books of account elsewhere than at his own place of business unless upon special grounds.

5. The rules as to tho time for appealing are not satisfactory. Such an accident as occurred in Bell v. North Staffordshire Railway Company (L. R. 4 Q. B. D. 205) ought not to be possible, and it should be sufficient if an appeal summons or notice be served within the prescribe 1 period.

6. Order 14 has proved one of the greatest practical improvements. It is suggested that its principle should be carried further, and that where a writ is served for a liquidated demand, aud the plaintiff files when issuing it an affidavit such as is required uuder ord. 14, r. 1, the defendant should not be at liberty to appear except with leave aud upon terms such as are imposed on giving liberty to defend uuder order 14.

w.

The sudden death is announced, from h?art disease, on Saturday last, of Mr. Horace Watson, solicitor to the Post Office. The appointment, which is worth £2,000 ayoar, is in the gift of the Postmaster-General. Mr. Watson was appointed by Lord John Manners in 1879, on the death of Mr. Ashurst.

Much astonishment, says the St. James's Gazette, has been caused among the barristers and newspapers of St. Louis in the United States by the ruling of Judge Laughlin, of the criminal court of that city, on the occasion of the trial of a man named Reilly for the murder of a man named Hatch. "If," said the judge, "Hatchgave Reilly reasonable cause to believe that he was going to kill him, Reilly, in law, was justified in bunting Hatch up and killing him; because the law does not rrquire that a man should wait, for his opponent nrinht meet him in the street with a double-barrelled shotgun." It was at first thought that the judge had not said wh it he inteaded to say, or that ho had been incorrectly reported; but in an interview with a reporter he repeated the language, "This doJtiine is simply unavailable,'1 he sail; "the opposite would subject anj man to constant danger of tha astassin's d-iadly bullot or dagger, and in every case gives to the latter the commanding advantage." The Globe-Democrat gives tha contrary views of a number of judges and lawyers; but, in the meantimo, the prisoner in tho case has profited by securing an aquittalu Judge Laughlin's ruling is considered nil the more serious because there are dozens of persons in and about St. Louis who have " reasonable cause" to believe that other persini ars going to kill them, and theso will now, it is feared, commit wilful murder as a matter of precaution. A genercl fusillade may, tueicforo, at any moment bs expected.

« PreviousContinue »