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The Solicitors' Journal.
LONDON, DECEMBER 31, 1881.
stood without some explanation of the circumstances under which CURRENT TOPICS.
they were arrived at. Last session, in the course of the discussion in committee of the Judicature Act Amendment Bill, the Attorney
General, while opposing an amendment which proposed to shorten The CHAMBERS of Vice-Chancellor Bacon have been removed the Long Vacation by fourteen days, on the ground that the to the Royal Courts of Justice.
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 IT IS UNDERSTOOD that Lord Justice BRETI's amendment to Government in this consideration that the matter was submitted to the recommendation for shortening the Long Vacation which was the Council of Judges. Lord COLERIDGE placed six motions on submitted by Lord COLERIDGE to the Council of Judges, was the agenda, of which the first was in the following terms :carried by a majority of twenty to four.
“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 The SITTINGS PAPER of the Chancery Division for the Hilary Appeal begin for the future on the 24th of October.” The other Sittings, 1882, which we print in another column, extends over five motions related to judicial sittings during the Long Vacation. seventy-three working days from the 11th of January to the 5th Upon the first motion being put, an amendment in the terms we of April. During a portion of that time Mr. Justice HITTY will
printed last week was moved by Lord Justice BRETT, and carried be absent on circuit, and the work appointed for him will be taken by a very large majority, and the remaining five resolutions were during his absence by Mr. Justice Kay, while Mr. Justice then withdrawn. This decision will, we think, be generally looked MANISTY will, during the same period, take that appointed for upon as ill-advised. It is clear that matters cannot long remain Mr. Justice KAY.
in their present condition. The Government are pledged to bring
the question forward next session, and it cannot be doubted that MR. Henry H. Fowler, who writes to the Times on the Parliament will legislate in the interest of the suitors rather subject of the Long Vacation, and says that there are “127 days than of the judges and officers of the courts. We doubt whether during which the Courts of Justice in this country are practically the judges will obtain any very hearty support from the profession shut,” rather understates his case. Adding Sundays, there are in in their resistance to a moderate change, for although all of thein the year 161 such days, and the days on which the courts sit but two still enjoy to the full their long holiday, comparaamount to 204. He also mistakes in saying that “these unrivalled tively few members of the profession do so. To the great mass of vacations are the exclusive privileges of the judges, the paid lawyers it will matter little if the vacation is slightly abridged, officials, and the suitors.' Without counting Sundays, the vaca- for as regards the bar and the solicitors it has already been broken tions of the paid officials, other than judges, amounted in 1881 in upon. All through it there are one or two judges sitting in public only to eighty-five days; and during everyone of those eighty- once or twice a week, with long lists of causes and a crowded bar, five days, with the exception of about five, the offices were open not to speak of sittings in chambers. In spite of the rigorous for vacation business.
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 AN INTERESTING QUESTION as to what are “ vermin has
promptly heard, and stating the reasons, the vacation business has recently been raised in Scotland. The Gun Licence Act, 1870, increased with extraordinary rapidity. During the last Long which requires a yearly licence to be taken out by every person Vacation over 200
orders were made than in any who shall use or carry a gun, and imposes a penalty of £io for previous vacation, and the work was so pressing that, at one using or carrying a gun elsewhere than in a dwelling-house or the period, public sittings were held during every week day. The curtilage thereof without having a licence, provides (section 7) recommendations of the judges ignore these facts. They read that the penalty shall not be incurred " by the occupier of any as if we were still in the times when, in order to get an injunclands using or carrying a gun for the purpose only of scaring birds tion, a Vice-Chancellor had to be sought for in his rural secluor of killing vermin on such lands." In the case referred to the sion. The fact is that “the habits of the majority of people penalty was attempted to be enforced against an occupier of land interested in such a question,” upon which the judges lay so much at Jedburgh, who had shot wood pigeons on such land without stress, have changed and are changing, and even judges will have having taken out a gun licence. The justices before whom the to adapt themselves to the new order of thingą. complaint was brought dismissed it, and, therefore, must be presumed to have held that wood pigeons are vermin. We are not aware of any authoritative and exhaustive definition of vermin. It is a word which, we should imagine, varies considerably in its mean
THE MISCHIEVOUS PERSON who raised a groundless alarm of ing according to the ideas of the age in which, and of the class by fire at the Grecian Theatre on Tuesday evening might advantagewhom, it is used. In Gedge v. Minne (2 Buls. 60), the court called ously study the report of the recent case of Reg. v. Martin a fox " a beast or vermin,” but then that was in the dark ages the audience at a theatre, extinguished the lights and placed an
(30 W. R. 106). The prisoner, with the intention of alarming when it was deemed that a fox is “ a noisome creature to the commonwealth" (see Millen y. Fandrye, Pop. 161). A badger was
iron bar across one of the doors. A panic ensued upon the described in the case in Bulstrode as
noysome vermin.” But sudden darkness ; a rush was made for the street, and two persons we should doubt whether any one in any age or of any class were injured through being pressed against the bar which had would describe a wood pigeon as vermin; and it is to be observed been placed in the doorway. The jury found that the prisoner that the exception in the Gun Licence Act expressly distin- had extinguished the lights and placed the bar in the doorway guishes between scaring “birds" and killing “vermin."
with the intention of wilfully obstructing the means of egress from the gallery, and the court held that he had been righely
convicted of maliciously inflicting grierous bodily harm within THE FULL IMPORT of the resolutions relating to the Long 24 & 25 Vict. c. 100, s. 20. The placing of the bar in the doorVacation, passed by the Council of Judges, will not be under way was an important element in this case; but if the injuries
had been caused by crushing or trampling the finding as to the Phillips v. Henson would, in this view, have excluded the plaintiff prisoner's intention in putting out the gas would doubtless have from the category of lodgers. That case may, therefore, be taken supported the conviction. It is to be observed that the Recorder to have been overruled. of Leeds had directed the jury to acquit the prisoner if they thought that his proceedings amourted to nothing more than a
IT APPEARS that the portion of the new Patent Bill on which piece of foolish mischief”; but Mr. Justice STEPHEN said that
we recently commented is to be withdrawn, and, in lieu of it, it this direction “ put the case too high in favour of the prisoner,” is to be provided—first, that it shall be the duty of the commisand he cited with approval the dictum of Lord BLACKBURN in Reg. sioners to act as arbitrators to litigants; secondly, that the v. Pembleton (22 W. R. 555), that malice may be deemed to exist courts, whenever they have power under the Judicature Act to “where any person does an act injurious to another without lawful refer a patent action to a special referee, shall remit it to the three excuse." This principle appears to be applicable either to putting commissioners; and, thirdly, whenever the courts have power to call out the gas in a theatre or to raising a false alarm of fire, since in assessors, they shall have power to call upon the commissioners, every person is presumed to contemplate the necessary conse
or any of them, to act as assessors. These are much more reasonquences of his own acts.
able provisions, and proceed on the lines we ventured to indicate of attempting to improve the existing procedure, instead of pro
posing to sweep it away and establish a special court for patent THE FATE which befell an appellant in a bankruptcy case of Ex parte McWade, which came before the Court of Appeal (Lord COLERIDGE, C.J., and BAGGALLAY and LINDLEY. L.JJ.) on the 20th inst., may serve to show what a trap for the nnwary IMPLIED WARRANTY ON SALE OR HIRE is laid by the Bankruptcy Rules 143 and 144 of. 1870, which, though they have never been formally repealed, have, in con
OF CHATTELS. sequence of the rules under the Judicature Acts, ceased to govern The case of Robertson v. The Amazon Tug and Lighterage Company the practice in relation to appeals from the Chief Judge in Bank- (L. R. 7 Q. B. D. 598) raised a question of much general imruptcy to the Court of Appeal, though they remain in full force as portance, which can hardly be considered as satisfactorily solved regards appeals from the county courts to the Chief Judge. Rule even now, having regard to the fact that a difference of opinion 143 provides that “an appeal against a decision or order of the arose in the Court of Appeal, Bramwell, L.J., being of the conChief Judge in Bankruptcy, or a judge of a county court, shall be trary opinion to that of Brett and Cotton, L.JJ. The question entered with the registrar of appeals within and not later than involved appears to have been whether any implied warranty of twenty-one days from the said decision or order, by leaving the quality or condition of a specific chattel arises upon a contract with him a copy of the appeal notice of motion.” And by rule for the hire of such chattel, and if so, to what such warranty 144, “ Upon entering an appeal, a copy of the appeal notice
amounts. The circumstances of the particular case were no sball be sent forthwith by the appellant to the registrar doubt somewhat special, it not being exactly the case of hiring a of the court appealed from, who shall forthwith file the chattel. The plaintiff contracted with the defendants to act as same with the proceedings, and a similar notice shall be delivered master of a specified steam-tug upon a certain expedition for a by the appellant to each respondent four days before the day on lump sum, he paying the crew and finding provisions. In conwhich he intends to move." The appellant in Ex parte McWade
sequence of the boilers of the tug being in a defective condition (who appeared in person) had complied strictly with these rules, the expedition took longer than it otherwise would have done, and but he had omitted to give to the respondent a notice of the so the plaintiff's profit was much diminished. It seems to us that appeal within the twenty-one days prescribed by rules 9 and 15 of much the same considerations are involved as in the case of a order 58 under the Judicature Act. The preliminary objection contract of hire, and the discussion that took place dealt to a was taken that the appeal was too late, and the court held that, great extent with the doctrines that would be applicable to such a following the decisions in Ex parte Viney (25 W. R. 364, L. R. 4 contract. Ch. D. 794), and Ex parte Sa ffery (25 W. R. 572, L. R. 5 Ch. D. If we rightly apprehend the view taken by Bramwell, L.J., 365), they could only dismiss the appeal. It is, however, very it was this: he seems to have been of opinion that, though much to be regretted that it should be possible for a suitor to be on the hire of a specific chattel there is no implied warranty as to thus misled with regard to the practice of the courts, and we have the nature and character of the thing hired, assuming it to be in no doubt that if the matter were brought to the attention of the a reasonably good and perfect condition, there is, at any rate to Lord Chancellor, he would take the necessary steps to prevent the some extent, an implied warranty as to its condition. For instance, recurrence of such mistakes. It is by no means creditable to the the tug in question might be a weak and originally badly conadministration of justice that they should be possible.
structed 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 WE HAVE OFTEN EXPRESSED our opinion that the decision no rudder, then there would be a right of action, because there is in Phillips v. Henson (26 W. R. 214, L. R. 3 C. P. D. an implied undertaking that the article supplied is in a state as fit 26) was wrong. In that case GROVE, J., defined a lodger for the purpose for which it is supplied as care and skill can make within the Lodgers' Goods Protection Act as being “a it. There is no doubt that in the case of a contract for the hire person not contracting with the landlord, but who is in a subordinate of a non-specific chattel for a particular purpose, specific to the position to the landlord, does not owe him rent, and between whom party letting the chattel, there is an implied warranty of the and the landlord there is no privity.” According to this definition nature suggested, and the learned Lord Justice seems disposed to the Act is applicable to the case of every under-tenant. In com- go further and hold that there may be such a warranty in the case menting on Phillips v. Henson (22 SOLICITORS' JOURNAL, 300) of the hire of a specific chattel. "The case of Francis v. Cockrell we ventured to point out that the question really was whether the (L. R. 5 Q. B. 184, 501) does not appear to have been cited in plaintiff was a lodger according to the ordinary popular meaning the argument of the case we are discussing, but the decision of the term, and in the recent case of Morton v. Palmer (30 appears to be very material to Lord Justice Bramwell's view. W. R. 115) we find Brett, L.J., using similar language. The That was the case in which it was held that a person who caused word “ lodger,” he
mean a lodger according to the a stand to be erected at some races was liable for injuries caused understanding of the majority of persons conversant with letting by its downfall to a person who paid for admission thereto, the in this country.” And he lays down as one test of whether a stand having been inadequately and negligently constructed by a person is a lodger, the question whether the person letting retains sub-contractor. Keily, C.B., there says that, as a general rule, the position of master of the house. “He need not, in my opinion, where one man engages with another to supply him with live or sleep in the house, but he must have reserved such power particular article or thing, to be applied to a certain use and puras the master of a house ordinarily does. If, however, he has gone pose, in consideration of a pecuniary payment, he enters into an away, and given up such power, the person let into possession is implied contract that the article or thing shall be reasonably fit not a lodger.” It is clear that the agreement for letting in for the purpose for which it is to be used, subject to the exception established by Redhead v. Midland Railway Company (L. R. 4 me an article, whether specific or otherwise, very different conQ. B. 379) as to cases of a latent defect undiscoverable by the siderations arise from those which arise if I buy a similar article exertion of any reasonable skill and diligence. It seems to us from a friend. The difference between the considerations in the that it would have been desirable that this case should have been two cases entirely depends, as it seems to us, on the principle we brought to the notice of the Court of Appeal. All the judges in have indicated. The same might be said in relation to the Exchequer Chamber seemed clear that there was no absolute other considerations, such as that arising from opportunity of inwarranty of the condition of the stand; so the way in which Lord spection. We should apply the same test both to cases of sale and Justice Bramwell limited the warranty, as applied to cases of hire, hire. In the case of the stand (Francis v. Cockrell), for instance, seems correct; but no distinction appears to have been drawn by was it reasonable to suppose that the person buying a ticket the judges in Francis v. Cockrell between a contract to let a exercised his own judgment as to the stability of the stand ? It specific and to let a non-specific chattel. The stand was, we seems to us that it may, on consideration, turn out that the fact take it, specific enough. It may be urged that the case is that the article is specific is only one element, though, no doubt, different from that which we are discussing, the action in Francis it may be a very important element, in determining the question v. Cockrell being for personal injuries, and that the decision whether there is an implied warranty. We do not feel convinced, rather rests on the duty towards persons trusting themselves on if the matter ever came to be argued out, that the fact that the the stand than on warranty. We have some difficulty, however, chattel supplied is a specific chattel is always or necessarily in seeing any sound distinction in this respect. There was no conclusive that there is no implied warranty. The case of actual negligence on the defendant's part in Francis v. Cockrell, Shepherd v. Pybus (3 M. & G. 868) seems, to some extent, at and the question must have turned on what the implied undertaking least, to be an authority that the question whether the sale is of a was, and whether the damages arising were personal or pecuniary specific chattel is not the sole test, for the judgment in that case does not seem material. The decisions in Smith v. Marrable (11 seems to dwell upon the question whether the buyer had had an M. & W. 5) and Wilson v. Finch-Hatton (L. R. 2 Ex. D. 336) are, opportunity of inspection, and relied on his own judgment or not, unless some peculiar distinction attaches to the case of a contract rather than on the question of specific or non-specific chattel. to let a furnished house, favourable to the view expressed by Lord We cannot think that the judgment of the Court of Appeal in the Justice Bramwell. Brett and Cotton, L.JJ., both appear to case we are discussing satisfactorily deals with the general prinhave held that there is no warranty to be implied on the ciples involved with regard to implied warranty. We are not letting of a specific chattel. It may be observed that Brett, prepared to suggest that the judgment of the majority in the L.J., does not cite a single authority in the course of his particular case is wrong. The circumstances were peculiar and judgment. Cotton, L.J., does refer to Smith v. Marrable and possibly they rightly gave rise to the inference that the plaintiff, Wilson v. Finch-Hatton, distinguishing them on a ground which having an opportunity for inspecting the tug, took the vessel for we cannot quite understand. He says that in those cases the what it was worth. But it seems to us possible that the judgment, defendant was defending himself against an action for refusing to owing to the generality of the terms employed, may be taken to perform his part of the contract by reason of the non-fulfilment of decide a good deal more than was necessary for the purposes
of the à condition, whereas in the case before him the plaintiff was particular case. We doubt very much whether the majority of the suing for damages, and must establish a warranty. But surely in court intended to decide that the fact of the chattel being specific all cases of condition precedent the condition is, if the contract is was necessarily and in itself conclusive, and whether some of the executed, available as a warranty.
terms of their judgments ght not to be somewhat limited by We must say that the point involved in the case we are
we are reference to the subject matter. 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 com
BANKRUPTCY LAW REFORM. prehensive way. For instance, is there any sound distinction
[COMMUNICATED.] in this respect between contracts of letting and hire and contracts
V. of sale? This never seems to have been thoroughly considered. Inasmuch as it is proposed to abolish entirely the present system of The judgment in the case of Jones v. Just (L. R. 3 Q. B. D. 197) liquidation and composition arrangements, it of course becomes necessary deals at some length with the question, under what circumstances an to provide some other method of carrying out composition arrangement, implied warranty arises on the sale of a chattel, but there is no so as to be binding upon non-assenting minorities of creditors. This the attempt to evolve one general proposition from the cases. The Government Bill proposes to do only after an adjudication in bankruptcy authorities there cited (see p. 202) certainly seem to show that, has been made against the debtor. The clause containing the Government in general, when a specific ascertained chattel, which the vendee proposals is the one we next come to-viz., clause 19—and we print it at could have inspected if he chose, is sold, the maxim caveat
length before commenting upon it. emptor” applies, and there is no implied warranty. It would
“ Clause 19.-(1.) The creditors may, at the first or any subsequent appear that this may be so even if the purpose for which the in satisfaction of the debts due to them from the bankrupt, or that a scheme
meeting, pass a preliminary special resolution that a composition be accepted thing is wanted is mentioned or known to the vendor in the case
of arrangement of the bankrupt's affairs be approved. of a sale. In Emmerton v. Matthews (7 H. & N. 586) the sale “ (2.) The preliminary resolution shall not have effect unless it is conwas of specific meat, and the presumption surely is that meat is firmed by a subsequent ordinary resolation, and the confirming resolution bought to be eaten. Chanter v. Hopkins (4 M. & W. 399) and shall not be passed until the bankrupt has passed his publio examination, Ollivant v. Bayley (5 Q. B. 288), though not cases of sales of
por anless there has been ciroulated among the creditors, not less than three
days before the meeting at which it is to be passed, a notice stating specific chattels, both seem to involve a somewhat similar prin- generally the terms of the proposal for the composition or scheme, and a ciple, for in those cases, though the purpose for which the article report of the official receiver as to the proposal. was required was stated, the article being one of a well-known " (3.) A composition under this section shall not be valid unless it provides and defined description, it was held to be sufficient that it for payment of not less than five shillings in the pound. answered that description, though unfit for the purpose specified. receiver sball report to the court as to the composition or scheme, and if
" (4.) When the confirming resolation has been passed, the official It seems to us, however, that perhaps the true general principle to the court is of opinion either that the terms of the composition or scheme be elicited from the various cases is that the question whether are not reasonable, or pot calculated to benefit
the general body of creditors there is an implied warranty or not depends on whether the article under the bankruptog, or that the bankrupt has committed any such missupplied is supplied under such circumstances as that the party his discharge
, the court may refuse to approve the composition or sohome, supplying it knows or ought to think that the party to whom it is but otherwise shall approve it, and the approval may be testified by the supplied is relying on the judgment of the party supplying it, or judge of the court signing the instrument containing the terms of the under such circumstances as to lead to the inference that the composition or scheme, or embodying the terms in an order of the court. party to whom it is supplied relies on his own judgment. The “(5.) A composition or scheme so approved by the court shall be binding Farious circumstances relied on in the different cases are, perhaps, under the bankruptcy.
on all the creditors, so far as relates to any debts due to them and proveable if rightly considered, only material as determining the answer to
" (6.) The approval of the court shall be conclusive as to the validity of this question. For instance, if a manufacturer or tradesman sells the composition or scheme.
"(7.) The provisions of any composition or schemo under this section person appointed is not fit to act as trustee, or that his connecti: n with or remay be enforced by the court on a motion made in a summary manner by | lation to the bankrupt or his estate or any particular creditor makes it improbe any person interested, and any disobedience of an order of the court made able that he will act in the interests of the creditors generally. on the motion shall be deemed a contempt of court.
“ (3.) If the Board of Trade make any such objection, they may refer tha *(8.) If the bankrupt, whether his bankruptcy is closed or not, makes matter back to the creditors, and, unless the objection is removed, ibey shall default in payment of any som dne in pursuanoe of a composition or scheme notify it to the court, and thereupou the court may decide on the validity of under this section, the court shall, on application by the person to whom the objection. the sum is due, order that the bankruptcy be repived, and thereupon the '(4.) The appointment shall take effect as from the date of the certificate, bankruptcy shall be revived and continuo as if the composition or scheme *(5.) Where the assets under a bankruptcy petition do not exceed three tad not been approved."
thousand pounds, the remuneration of a trustee appointed as aforesaid shall Sub-clauses 1 and 2. — The proposal that the preliminary resolution is not
. (5.5o here the assets
exceed three thousand pounds, the Board of Trade map, to be special and the confirmatory one merely ordinary is almost, but not
on a special report of the committee of inspection, or of a majority in value of quite, following the provisions of section 126 of the Act of 1869, that sec
the creditors, allow out of the estate & fitting remuneration to a trustee tion requiring the confirmatory resolution to be passed by a majority in appointed as aforesaid. number as well as value, This is reversing the order of things laid down "(7.) In either case the Board may, on a special report of the committee of in section 110 of the Act of 1861, which required the first resolution to inspection, or of a majority in value of the creditors, setting forth the special be passed by the major part in value only of the creditors present, but services which have been rendered by the trustee, or other special circumprovided that the confirmatory resolution must be passed by a majority stances, order an additional remuneration to be allowed to him out of the in number representing three-fourths in value. Setting the one pro- estate. vision against the other, we very much prefer that of 1861, as we think it
" (8.) The Board may from time to time, with the consent of the Treasury, is the last and more considered resolution of the creditors that should be alter the scale of remuneration in the first schedule to this Act. passed by the greater majority. But we strongly think that it would be
“ (9.) The creditors may, if they so desire, appoint the official receiver of much more desirable to require a special resolution to be passed at each the bankrupt's estate to be trustee of the property of the bankrupt. meeting, and we would even go further and require the confirmatory within the prescribed time after the adjudication, the official receiver for the
“(10.) If the creditors or committee of inspection do not appoint a trustee resolution to be passed by a majority in number representing three
time being shall become, and be deemed to be appointed by the Board of Trade, fourths in value of the total creditors, whether present or not. With the trustee in the bankruptcy. regard to the latter part of sub-clause 2, we think that more than three “(11.) Provided that the creditors or committee of inspection may, at any days should be required to be given to the creditors to consider the subsequent time, if they think fit, appoint a trustee, and upon the appointment proposal, and, if necessary, to confer with each other thereon. Why not being made and certified, the person appointed shall become trustee in the six days as at present ?
place of the official receiver. Sub-clause 3.-Some such provision appears to be called for to prevent "(12.) If the official receiver is appointed trustee he shall have remuneration whitewashing cases by nominal compositions, and in this view the limit of as hereinafter mentioned." five shillings in the pound appears reasonable.
Sub-clause 1.-The only change from the present law proposed by this Sub-clause 4.-This proposal seems to be an attempt to enact the prin- sub-clause is that the power of the creditors to fix the remuneration is to ciples laid down by the Court of Appeal in the case of Re Durham & Co. be subject to the provisions of the Act. It is, in our opinion, a very (29 W. R. 363, L. R. 16 Oh. D. 623), as those which should govern proper proposal to place some restriction upon the power of creditors to the court in deciding as to whether it will approve of a scheme of allow remuneration to a trustee, and we will treat of the proposals under arrangement under section 28 of the Act of 1869. If the views taken by the beads of the sub-clauses containing the same. the Court of Appeal in that case are approved of by the Legislature, it is Sub-clauses 2, 3, and 4.-We heartily approve of the proposal that all well that they should be specially enacted so as to avoid uncertainty in trustees should give security to the satisfaction of some independept the future. But it appears to us to be going rather far to give the court body, whether the Board of Trade or any other body. This will do such a parental control over the actions of creditors, as though they were more than anything else to stamp out that class of adventurers who, not able to settle their own affairs. It is just this interference that in failing in other methods of gaiving a livelihood, style themselves former times was complained of by creditors, and may be so again. accountants and go in for trusteeships, and who have been the chief
Sub-clauses 5 and 6.—These are a decided improvement on the cause of bringing discredit upon the present system. As to the proposal provisions of section 126, sub-section 7, and section 127 of the present to give the court, on objection made by the Board of Trade, power to Act. Sub-section 7 of section 126 provides that a composition shall be bind-override the appointment of a trustee, this power formerly lay in the ing only on such creditors as are included in the statement of affairs, and court, and it may be well, in order to preveut the control of an estate consequently makes it dangerous to effect compositions ander that section, from going into the hands of parties whose interests might be against it having been held that comparatively slight inaccuracies in the state- the impartial administration thereof, that it should be re-enacted ; but ment of affairs are sufficient to render a composition not binding upon at the same time cousideration should be given as to whether it will not the creditors not correctly stated.
give rise to a great amount of litigation upon the appointment of trustees Sub-clause 7 proposes to re-enact a provision in sections 28 and 126 of which may probably raise an evil as bad as, if not worse than, the one the present Act. We have always thought the wording of the proviso sought to be remedied. vague and unsatisfactory, and in practice, after trying it in several cases Sub-clause 5.-The first schedule to the Bill is as follows: in the early stages of the Act, have entirely ceased to proceed under it, and this we believe is also the experience of many other practitioners. It
“SCALE OF REMUNERATION. has never been clear to us against whom the provisions of a composition “(a.) For property realized, including debts collectedare to be enforced. If against a debtor only, then we think the proposal
“21 per cent. on the first amount of £500 or any less sum ; in the following sub-clause much more reasonable and (it being a new
“1 per cent. on the next amount of £500 or any loss sum ; suggestion) that it might well be substituted for this. It appears un
5 per cent. on all furtber sums. necessary to make both provisions.
“ (6.) On dividend
2 Sub-clause 8.—This proposal will, we think, be likely to work well in
per cent, on the first amount of £1,000 or any less sum;
“1 per cent. on all further sums. substitution for the previous sub-clause. Some provision ought, how- “Where the property has been realized partly by a receiver and partly by ever, to be made, so as not to prejudice new creditors who may have the trustee, the remuneration for property realized shall be divided in propore trusted a debtor on the strength of his having made an arrangement with tion to the amount realized by each.” 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 be absurdly low, and we think no respectable accountant could be got
The scale of remuneration provided by this schedule appears to us to their debts without even having the right of proving upon the estate and taking a dividend along with the old creditors. This would be a manifest to undertake the work at the price. At the same time it is only right injustice, and, to our mind, they ought to be paid out of the assets in that some limit should be put upon the remuneration to be allowed to a priority to, instead of being placed in a worse position than, the old &c. This would seem to fix a hard and fast line, but sub-clause 7 says
trustee. The sub-clause says that the remuneration “shall not exceed,” creditors.
Clauses 20—26 deal with trustees of bankrupt properties, and contain that " in either case,” presumedly either of the cases mentioned in this a number of new and most important proposals.
Clause 20 is as
and the following sub.clauses, "the Board maj ... order an follows:
additional remuneration,” &c., which would seem to give power to the
Board to go beyond this sub-clause. Whichever is intended ought to be “Clause 20.-(1.) The creditors may, at the first meeting, or at an adjourn. more clearly stated. Then, again, sub-clause 8 gives power to the Board ment thereof, by ordinary resolution, appoint some fit person, whether à
of Trade to alter the scale of fees fixed by the first schedule. This creditor or not, to fill the office of trustee of the property of the bankrupt, and, may probably get rid of the difficulty if too low a rate is fixed in the subject to the provisions of this Act, fix his remuneration; or they may resolve to leave his appointment to the committee of inspection appointed as
first instance, and perhaps it may be as well not to incur the danger of hereinafter mentioned.
fixing too high a rate to begin with. “ (2.) The person 80 appointed shall give security to the satisfaction of the
Sub-clause 6.-We think the power to grant a fitting remuneration to Board of Trade, and thereupon the Board shall certify that his appointment has
a trustee ought to be more independent of the committee of inspection or been duly made, unless they object to the appointment on the ground that it the creditors. Why should not the power be given on the application bas not been made in good faith by a majority of the creditors, or that the of a trustee, and simply requiring him first to submit the same to the
committee or creditors, whose views either for or against should of course to state that I have been invited to read a paper on the question before be considered by the Board of Trade in deciding the question ?
the United Law Students' Society, on the 18th of January, at their hall Sub-clauses 7 and 8.-We have anticipated these sub-clauses in our in Clement's-inn, the result of which, I hope, will be the adoption by remarks upon the two last preceding sub-clauses.
them of some resolution which will lead to effective action being taken Sub-clause 9.—This is a power which we think is included in sub- to relieve execution creditors from that partial deprivation of their just clause 1. The form of the Bill would be improved, in our opinion, if the rights, which, through no fault of their own, but exclusively from that of two suh-clauses were incorporated into one by inserting in the third line others through whose hands their moneys uust pass, they are still of sub-clause 1, after the word "creditor," the words, “the official so improperly suffering.
W. J. FRASER. receiver."
2, Soho-square, W., December 28. 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
REFORM IN LEGAL PROCEDURÉ. words, “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
[To the Editor of the Solicitors' Journal.] make the presumed intention more clear.
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 masters will be productive
of inconvenience, unless at the same time particular masters are selected CORRESPONDENCE.
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 THE CONVEYANCING ACT, 1881.
uniformity of practice or to expedite proceedings. [To the Editor of the Solicitors' Journal.]
2. Unnecessary cost and delay are caused by requiring an order for
an affidavit of documents. Such an order is made as of course. InterSir,—Persons who hold two or more mortgages by the same mortgagee, rogatories may now be delivered without an order. one of which happens to be a deficient security, will be disagreeably
The rule affirmed by the decision in Bewicke v. Graham (L. R. 7 Q. astonished by the suggestion in your article of this week, that under B. D. 400) ought to be abolished. Except in cases of alleged fraud or section 65 of the Conveyancing Act they may be jockeyed out of their involving the title to property there ought not to be any privilege for right to consolidate, to which they have been fondly trusting to save
documents which can be given in evidence by their custodian. themselves from loss. It would be desirable to know from the framers
Even an affidavit of documents appears unnecessary, and, unless of the Act whether, as you suggest, this possible consequence of the
necessary, an affidavit ought not to bo required. The defendant might Act has escaped their notice.
T. H. P.
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 in
question, and the plaintiff be bound to deliver a similar statement with his [To the Editor of the Solicitors' Journal.]
reply, and either party should be at liberty to call upon his opponent to Sir,-In Messrs. Wolstenholme and Turner's book on this Act it is make oath as to any particular documents (not included in his statement) stated (p. 3, par. g) that no mention of the executors, administrators, supposed to be in his possession or power, the party applying for it being and assigns of a covenantor or covenantee will be required, and sec- saddled with the costs of the affidavit, unless he satisfies the taxing tions 58, 59, and 60 of the Act are referred to.
officer that the documents asked for were material, and that there was But what difference does the Act make as to mentioning the execu. reasonable ground for believing same to be in the power of the other tors, &c., of a covenantee in the case of covenants not relating to land, side. as, for instance, a covenant in a mortgage of an insurance policy to 3. To a practitioner it appears there would be negligence in omitting keep up the policy?
to require inspection of documents, and it is obligatory to give such Hitlerio it has certainly always been usual, whether necessary or inspection. This being so, the practice as to the costs of inspection not, to covenant with the mortgagee, his executors, administrators, and settled in Brown v. Sewell (L. R. 16 Ch. D. 517) appears to be unjust. assigns, and I am unable to see that the Act makes any difference in 4. A suitor ought not to be obliged to produce his books of account this respect, section 58 being entirely confined to covenants relating to else where than at his own place of business unless upon special grounds. land.
C. 5. The rules as to the time for appealing are not satisfactory. Such
an accident as occurred in Bell v. North Staffordshire Ruilway Company SHERIFFS AND THEIR OFFICERS.
(L. R. 4 Q. B. D. 205) ought not to be possible, and it should be suffi
cient if an appeal summons or notice be served within the prescribed [To the Editor of the Solicitors' Journal.)
period. Sir,- It will be recollected that I recently intimated my intention to 6. Order 14 has proved one of the greatest practical improvements. It bring under the notice of the Court of Common Council the delay and is suggested that its principle should be carried further, and that where difficulty to which, in many cases, judgment creditors are subjected in a writ is served for a liquidated demand, and the plaintiff files when obtaining from sheriffs' officers the proceeds of executions. The notice issuing it an affidavit such as is required under ord. 14, r. 1, the de. of my motion appeared for some time on the business paper of the court, fendant should not be at liberty to appear except with leave and upon and on its being reached I was somewhat summarily precluded from terms such as are imposed on giving liberty to defend under order 14. moving it, or from stating the grounds upon which I considered the
W. matter could be investigated, by the Lord Mayor's ruling that the corporation (as of course I was well aware) had no 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 Mr. Horace Watson, solicitor to the Pust Office. The appointment, which
The sudden death is announced, from heart disease, on Saturday last, of thought to be out of order, and I had no reason to suppose that I should is worth £2,000 a year, is in the gift of the Postmaster-General. Mr. Watson be deprived of the opportunity of stating to the court some of the cases
was appointed by Lord John Manners in 1879, on the death of Mr. Ashurst. which had been communicated to me, in which citizens of London, as well as others, had been seriously prejudiced by the irregular action of the barristers and newspapers of St. Louis in the United States by the ruling
Much astonishment, says the St. James's Gazette, has been caused among sheriffs' officere. The Court of Common Council has from time to time directed its trial of a man named Reilly for the murder of a man named Hatch. “If,”
of Judge Laughlin, of the criminal court of that city, on the occasion of the attention to questions affecting, not only the citizers of London, but said the judge, “ Hatch gave Reilly reasonable cause to believe that he was those who reside outside the limits of the City, and I am persuaded going to kill him, Reilly, in law, was justified in bunting Hatch up and killing that if I had been permitted to introduce this matter to the notice of him; because the law does not require that a man should wait, for his oppothe court, it would have been rendering a useful service by inquiring nent might nieet him in the street with a double-barrelled shotgun.” It was into the existence of the alleged delay and expense, and making, as I at first thought that the judge had not said what he inteaded to say, or that have no doubt it would have made, such suggestions as would, when be had been incorrectly reported; but in an interview with a reporter he readopted, have been likely to insure to execution creditors that complete peated the language, "This dostrine is simply unassailable," he said; "the administration of justice which is so essential to the preservation of opposite would subject any man to constant danger of the assassin's deadly the rights of property, and those which are common to every ordinary bullet or dagger, and in every case gives to the latter the commanding contract.
advantage.” The Globe-Democrat gives the contrary views of a number of The matter is, however, of too much importance to be dropped, and judges and lawyers; but, in the meantime, the prisoner in the case has tbe communications which I have received are such as to comrel me to profited by securing an aquittal. Judge Laughlin's ruling is considered all
the more serious because there are dozens of persons in and about St. go forward, and while I regret that I shall probably not be able to make
Louis who have “reasonable cause" to believe that other personu are going to available the machinery which the Court of Common Council, through its kill them, and these will now, it is feared, commit wilful murder as a matter Law and City Courts Committee, possesses for dealing by way of of precaution. A general fusillade may, therefore, at any moment ba inquiry and recommendation with a matter of this kind, yet I beg expected.