Page images

cept so far as may be necessarily involved in the question of criminal liberty. It is doubtful, in our opinion, whether, if at the present responsibility. We know what the answer from a loose popular time a machinery were being devised for investigating into deaths point of view may be. It will be admitted that coroners' juries of a suspicious or exceptional character, such a machinery would are constantly in the habit of overstepping their province, strictly commend itself to anyone. It frequently necessitates the simul. speaking ; but it will be said that it is on the whole good that they taneous holding of two long and expensive inquiries, and someshould do so ; that moral delinquency is thereby branded, and a times, when the special tribunal charged with the inquiry whether good effect in practice is thereby produced. We are not at there is primâ facie ground for criminal proceedings has decided all convinced by that answer. We do not deny that often the un- in the negative, it involves the absurdity of a man's being put on his called-for, and so to speak extra-judicial, utterances of coroners' trial without the slightest probability of a conviction. juries may be justified, but we cannot for a moment assent to the It is frequently urged with great vehemence by medical conproposition that it is desirable that a constitutional tribunal should temporaries that it is an essential qualification of a coroner that he take upon itself to pass judgments in its judicial capacity upon should be a medical man. It seems to us that the procedure of matters not properly in issue before it. As a rule, if the conduct coroners' inquests is so uncertain and anomalous that there is of any person has been bad, the publicity given by the reports of good ground for retorting that there is an exceptional need of a the evidence constitutes a penalty of a similar nature to that trained legal intellect to direct the inquiry, and to keep the jury inflicted by the censure of the jury, and even if it were otherwise, to the proper limits of their province. The case we have referred we cannot think that the advantages supposed to be secured are to was, perhaps, in its particular circumstances, an exceptional one. an equivalent for the obvious dangers and mischiefs that in many It suggests, however, readily enough to anyone with any capacity cases may arise.

for general considerations, the possibility in other cases of the most At trials in criminal courts, and at Nisi Prius, conduct of an grierous hardship and injustice arising from the loose and irreobjectionable character is frequently brought before juries, but sponsible indulgence in the luxury of virtuous indignation except so far as a judgment thereupon is involved in the verdict on the part of a coroner's jury. If they find a verdict involving found by them, juries do not often pronounce any opinion thereon. criminal responsibility, the person inculpated is either convicted or They may occasionally volunteer incidental observations on the clears himself in a criminal court. But if they choose to find a conduct of persons concerned, but, as a rule, judges do not en verdict involving merely moral blame, there is no appeal against courage them to go outside their province and indulge their moral it to any other tribunal. There may have been no opportunity of susceptibilities by the expression of judgments of this kind. The effective defence, there being no definite charge. The verdict wisest and most judicially minded judges exercise great self not being the subject of any subsequent action, may not be given restraint over themselves in the comments which they permit with any due sense of responsibility, and may be merely the themselves to make with regard to conduct, the propriety or impro- expression of a basty and ill-considered opinion. priety of which is not directly in issue before them. A function that is thus sparingly exercised by assize juries, and even by judges, seems to be constantly arrogated to themselves by coroners' juries as their rightful province. It is obvious that this may in some cases involve the grossest injustice without the possibility of

BANKRUPTCY LAW REFORM. redress. A person against whom no particular charge is formu

[COMMUNICATED.) lated, who cannot defend or justify himself effectively from diffi

VI. culty in knowing with any exactness what points he has to meet,

Clause 21 of the Government Bill takes the place of sub-sections 3 may be for ever branded by an offhand and irresponsible and 4 of section 14 of the present Act, and is as follows :expression of opinion on the part of a jury composed of the " Clause 21.-(1.) When a trustee is appointed, the creditors may, at any least satisfactory type of jurymen, presided over, perhaps, by a

meeting, by resolution, appoint some other fit persons, not exceeding five ia medical man unable, from want of legal training, to control and direct number, and being creditors qualified to voe at the meeting, to form a com

mittee of inspection for the purpose of superintending the administration of the their investigations so as to confine them to the points which they bankrupt's property. are really charged by the law to determine. It is frequently the case “(2.) The creditors may, by resolution, give directions as to the that coroners' juries express opinions as to the necessity of further manner in which the property is to be administered by the trustee, and it precautions or by way of censuring certain modes of carrying on

shall be the duty of the trustee to conform to such directions unless the court

for some just cause otherwise ordere." business in reference to railway and other accidents. These expressions of opinion may do no harm, but we very much doubt

Sub-clause 1 extends the power of the creditors to appoint a committee their doing any good. Other much more potent agencies may be in case of filling up a vacancy, as at present. This we think desirable.

of inspection to any meeting, instead of at the first meeting only, except relied upon to effect the desired object of such expressions if But it limits the power to appointing creditors only to act as members of practically attainable. It is, however, with regard to the censure of the committee. At present any duly authorized proxy of a creditor particular individuals that we think the practice of coroners' juries may be elected on the committee. We do not think it desirable to alter objectionable.

this power, at any rate to the extent proposed. Power should, in our “Somebody ought to be whopped for this” is an expression of opinion, be given at least to elect a servant in the employ of a creditor opinion which has now become classical, and this language very Otherwise it will not be possible for a limited company or other corporate

and duly empowered by his employer so to act and represent him. fairly represents an attitude of mind which is natural to all men body to be represented on a committee of inspection, although such unrestrained by habits of reflection and responsibility, and par- company or corporate body may be the largest creditor. It often occurs, ticularly common, we should think, among ignorant, narrow- too, that the principals of large mercantile honses are utterly unable to minded persons on a somewhat distressing and irritating occasion. give personal attention to such matters as bad debts, and they have But the danger and impropriety of allowing such persons to avail confidential employés to whom they intrust this branch of their busi. themselves of the performance of a public function to give vent to pess. We think it highly desirable that such representatives should not this kind of feeling by hasty and ill-considered judgments foreign leave the law as at present as to the persons eligible to be elected, but

be made ineligible to serve upon committees of inspection. Why not to that function when rightly considered, must be obvious. Cases of give the Board of Trade and court power to object to the appointvery bad conduct, such as the jury seem to have considered that ment of any person similar to what is proposed in respect to a of the seducer in the case which suggested these remarks, tend to trustee ? mask the real objections to the practice we are deprecating. Sub-clause 2 would practically re-enact the present law. We have Such matters can only be properly judged of with reference to only to suggest that the word "ordinary” should be inserted between general considerations, not with reference to particular and excep- the words “by" and " resolution” in the first line. tional matters.

“Clause 22.-(1.) If a creditor accepts the office of trustee he shall not vote It seems to us that the whole machinery of the coroner and

on any question affecting his remuneration or conduct as such trustee. coroner's jury urgently requires consideration. It has been creditor or as proxy, for a creditor shall not be reckoned in the majority

"(2.) The vote of the trustee, or of his partner, solicitor, or clerk, either as handed down to us from antiquity. It originated at a time when required for passing any resolution affecting the remuneration or conduct of stipendiary magistrates were not, and when the public press did the trustee." not exist. The verdict of twelve men selected from the general The proposal of sub.clause 1 is, we think, very proper and desirable, public constituted then the most efficient safeguard for justice and but we do not see that sub-clause 2 is quite so necessary looking at the

[ocr errors]

fact that proxies are to be limited to being used at the meeting for “request" in line 4. As at present drawn a trustee may not be able to which they are given only. And it will be easy to evade the provision judge whether a solicitor has " sufficient cause" for not delivering his bill by getting proxies in the name of some independert person. Quære, of costs within the time specified, and he might divide the estate without also, would the sub-clause as drawn exclude the vote of a clerk to the providing for such costs, and then find that the court took a different trustee's solicitor as proxy for a creditor ?

view of the matter from his. We think, further, that the provision ought Clause 23 provides for the filling up of a vacancy in the office of a to be extended to any solicitor or other person whose costs may be payable trustee by resolution of creditors, that a trustee becoming bankrupt shall out of the estate. vacate his office, and that the official receiver shall act as trustee during Clause 27 is in place of section 41 of the present Act, and relates to any vacancy. This is practically the same as the present law, the official the declaration of dividend. It is as follows: receiver taking the place of the registrar.

"27.-The trustee shall reoder bis first account to the committee of inspecClause 24 relates to the removal of trustees. Sub-clause 1 provides tion, or, if there is no such committee, to the Board of Trade, and declare that this may be done by an ordinary resolution of the creditors the first dividend, if any, within four months after the conclasion of the first assembled at a meeting called for the purpose, and a new trustee ap- meeting of creditors, unless he satisfies the committee or Board that there is pointed at the same meetivg. Under the Act of 1869 (section 83, sub. sufficient reason for postpoving the declaration to a later date." section 4) this power is given to the creditors by a special resolution

A comparison of this clause with section 41 of the present Act will only, and we think it very undesirable to alter this and to give the power show that a considerable alteration from the present procedure is proposed, to å bare majority in value of the creditors at a meeting. If the and we think that the clause is a decided improvement upon that section. creditors are to have the power to remove a trustee by an ordinary The prorision in the section for summoning meetings of creditors if a resolution merely, it will give rise to a capricious exercise of the power, dividend is not declared within six months has become in practice almost, in many cases thus rendering the appointment, when made, a very if not quite, a dead letter, and to us it appears a useless expense and may uncertain one. We have known cases where trustees have been appointed well be abolished. We have only to call attention to the words in tho by a small majority at the first meeting, and if the power to remove clause, “ unless he satisfies the committee or Board that there is suficient them had been by an ordinary resolution, we should have had the dis- reason," &c. We presume that the intention is that the Board of Trade appointed minority, in some at least of such cases, trying to do so by are only to be satisfied in case there is no committee of inspection. If so, beating up creditors who had not proved and voted on the appointment, then we would suggest the insertion of the words, "if there is no such 80 as to obtain a bare majority in value, which would be a very great committee,” after the word “or" in a parenthesis. As drawn it would apevil.

pear as though the Board of Trade might be appealed to in case the com. Sub-clause 2 is as follows :

mittee were not satisfied, but the former part of the clause would some"If the Board of Trade are of opinion tbat a trustee appointed by the what negative such an interpretation. Whichever is in'ended (an creditors is guilty of misconduct, or fails to perform his duties under this Act, either course, would, to our mind, be feasible) ought to be more clearly the Board may remove bir from his office, but if the creditors, by ordinary expressed. This betrays a little carelessness on the part of the draftsman resolution, disapprove of his removal, they may appeal against it to the High of the Bill which appears also in other clauses which we have already Court of Justice."

pointed out-viz., clause 13, sub-clauses 3 and 4; clause 20, sub-clause Now a power to remove a trustee for misconduct is certainly neces- 11; and clause 25, sub-clause 3. sary. This power rests at present with the court, and we more than Clauses 28 to 32 are comprehended under the heading “Receipts, Pay. doubt whether this proposal will be at all an improvement upon the pre- ments, Accounts, Audit." These are somewhat lengthy and would take sent law. Besides, it appears inconsistent with clause 20, sub.clauses 2 up too much space to print at length. The following may be taken as a and 3, which give the Board of Trade power only to object to the general outline of them :-Clause 28.-(1.) Every trustee and receiver appointment of a trustee, it being for the court to decide upon the shall pay all money received by him into the Bank of England to the validity of the objection. There appear to us to be stronger reasons credit of the Paymaster-General. (2.) If he retains more than $50 for why the Board should not have the power to remove a trustee, than more than ten days he shall pay interest on the excess "at the rate of why they should not be able to negative his appointment in the first £20 per centum per annum, and shall, unless he explains the retention to instance.

the satisfaction of the Board of Trade, have no claim for remunera. Clause 25 provides for the vesting of a bankrupt's property in the tion, and may be dismissed from his office by the Board of Trade trustee when appointed; for the certificate of his appointment to be con- on the application of any creditor or of the Comptroller in Bauk. clusive evidence thereof, and to be deemed to be a conveyance or assign- ruptcy, and shall be liable to pay any expenses occasioned by reason ment of property which may be registered, enrolled, and recorded of his default.” (3.) Provides for payment out by the Paymasteraccordingly. We have only to call attention to the wording of sub- General of moneys required for the purposes of the estate. (4.) Provides clause 3, which provides that “a certificate of the Board of Trade or for the keeping of a separate account for each estate by the Paymáster. court that a person has been appointed trustee or receiver shall be General, and for his furnishing the trustee or receiver with copies conclusive evidence of the appointment." Clause 20, sub-clause 2, of entries, &c. Clause 29 provides for the investment of funds belonging proposes that the certificate of a trustee's appointmeut shall be given by to bankrupts' estates to the credit of the Paymaster. General in Govern. the Board of Trade; then why introduce the words “ or court”? Are ment securities, and (sub.clause 2) “ the income of the investments shall they intended to apply to the appointment of receivers only? If so, they from time to time be received by the Paymaster-General, and by him are certainly not so limited in application in the way they appear in the paid into the Exchequer, and carried to the Consolidated Fund”; (3.) clause.

For the realization of such securities “ when required to answer any Clause 26 relates to costs. Sub-clause 1 is as follows:

demands in respect of bankrupts'estates"; and (4.) “A separate account ." (1.) Where a trustee or receiver or manager receives remuneration for shall be kept of the amount derived from the income of any investments his services, no payments sball be allowed in bis accounts in respect of the made under this section, and regard shall be had thereto in fixing the performance of the ordinary duties which are required by statate or rules fees payable in respect of bankruptcy proceedings.” Clause 30 providesto be performed by the trustee or receiver or manager.”

(1.) That every trustee and receiver shall, once every six months, or more

frequently if so required, forward to the comptroller an account of his We suppose the intention of this is that the remuneration to be receipts and payments verified by affidavit, and in default shall be allowed is to cover all the trustee's clerk's time, and also that class of guilty of contempt of court; (2.) For the audit of such accounts by the work which some trustees are in the habit of allowing their solicitors to comptroller; and (3.) That such accounts shall be filed and kept do, such as sending out notices convening meetings of creditors, &c. by the comptroller and shall be open to inspection. Clause 31 requiresReference is made in the margin to section 29 of the Act of 1869. That (i.) Every trustee and receiver withiu ten days from the 30th of June provides that a trustee shall not employ a solicitor without the assent and the 31st of December in each year to file with the comptroller "a of the committee. This provision is in addition to that section, so that list of all balances belonging to the various estates of which he is trustee even if the committee authorize the employment of a solicitor, the trustee

or receiver, and shall at the same time deposit and leave with the compis not to employ him to do the ordinary work of the trustee at the troller the pass-book or pass-books verifying the balances,". and also +xpense of the estate. This is a very reasonable suggestion. Sub-clause requires the payment forth with of such balances “outstanding in the 2 provides for the taxation of all costs of " solicitors, receivers, managers, hands or under the control of the trustee or receiver” into the Bank of accountants, auctioneers, brokers, and other persons not being trustees.” England to the credit of the Paymaster-General ; and (2.) " If a trustee Sub-clause 3 is entirely new, and runs thus :

or receiver fails so to file any such list, or deposit any such pass-book, " (3.) A trustee sbal), a sufficient time before declaring a dividend, request the Board of Trade may, by order, remove him from the office of trustee bis solicitor to deliver bis bill of costs to the taxing officer for taxation, and or receiver of any or all of the estates under his control.” Clause 32 if the solicitor fails without sufficient canse to do so within seven days relates to the release of a trustee after payment of a final dividend or after receipt of the request, the trustee shall deolare and distribute the removal from his office. He is then to apply to the comptroller for a dividend without regard to any claim

by the solicitor, and thereupon any report on his accounts, which the comptroller is to furnish "on the euch claim shall be forfeited as well against the trustee personally as trustee complying with all his requirements”; (2.) The trustee is thereagainst the estate.”

upon to apply to the Board of Trade for an order of release, and to We think it would be an improvement if the words " without sufficient "send to each creditor who has proved, with notice of the application, a cause" in line 3 were omitted, and the words “or within such further copy of the comptroller's report ";(3.) The Board is to take into considera. time as the trustee or the court shall allow” inserted after the word tion the comptroller's report and any objection to the release by any

[ocr errors]

creditor or person interested, and shall either grant or withhold the (or aimed at) by the Vendor and Purchaser Act, 1874, combined with release subject to an appeal to the High Court of Justice; (4.) certain parts of the Conveyancing Act. This gives clearly and in a short Empowers the court to make an order “charging the trustee with the compass the alterations intended to be effected. We need hardly say, consequences of any act or default he may have done or made contrary however, that we do not advise draftsmen to take for granted all the to his duty,” and (5.) An order of release is to discharge a trustee from all statements in this summary. liability for any act done or default made by him, “but any such order In reading the notes, our attention was arrested by a remarkable feat of may be revoked on proof that it was obtained by fraud."

exegesis contained in the comment upon section 65. The reader may remem. The first point to which we would call attention in these clauses is the ber that we, in common with others, have inferred from the words of the provision that all moneys are to be paid into the Bank of England to the Act, “the freeholder, or other person entitled in reversion expectant on credit of the Paymaster-General. Why should not the creditors have the term,” that the section contemplates reversions other than free. power to appoint their own bank, if they choose, as at present ? By so hold, and therefore that sub-terms, as distinguished from terms, are withdoing they retain for the estate the benefit of any interest which the in its scope. We further inferred that a freeholder who should reserve money may make whilst in the bank, but this provision would deprive a substantial rent upou a long term, in order to prevent its enlargement them of such benefit for the good of the Consolidated Fund. It is an into a fee by virtue of section 65, might find his intention defeated if his indirect mode of raising a revenue at the expense of bankrupts' estates. tenant should grant a long sub-term taking a fine and reserving no rent. Then what is the object of the words, “the pags-book or pass-books The passage (p. 85) in which the learned editors deal with this manifest verifying the balances," if a trustee is only to pay into the Bank of Eng- oversight in the Act, is a curious study. They begin by much more than half land as proposed ?

In such case how can he be furnished with a pass. adm the inference ; but contend that the rights of the freeholder, book ?

"such as they might be" (why this depreciatory phrase ? they might With regard to the audit of accounts by the comptroller, without include a rack-rent, and be of much the same value as the fee itself), underrating the value of such audits, but on the contrary strongly would be preserved under sub-section 4. For this opinion they give no approving thereof, we would suggest that it would be a much more satis. reasons; and no one who reads sub-section 4 can fail to see that, although factory system if local audits of such accounts were established. It is the courts may perhaps screw the required meaning out of it, its words very certain that with the proposal that all trustees' accounts shall be cannot have been intended to serve a purpose for which they are so ill. audited by the comptroller an enormous increase in his staff will be adapted. Finally, a most heroic effort is made to withdraw sub-terms required ; and why should not auditors from his department or from the altogether from the section, which, say the editors (italics here and elseBoard of Trade visit the various districts periodically and require trustees where are our own], " seems to apply only to a lerm immediately under to wait upon them with their accounts on certain days? We feel sure the fee, the expression other person entitled' meaning other person that this would insure a much more correct and satisfactory audit.

entitled in remainder or reversion after the freeholder.'" But In clause 28, sub-clause 2, and clause 32, we are strongly of opinion "the expression” used by the Act is not barely “other person that the substitution of the Board of Trade for the court will not be an entitled : it is “other person entitled in reversion expectant or the improvement. Our remarks upon clause 24, sub-ciause 2, will apply also term.Shall we gravely be told that this means,

" other person to sub-clause 2 of clause 28, whilst with regard to clause 32, we cannot entitled in remainder or reversion expectant on the determination of gather therefrom or from any other clause in the Bill where it is pro- the estate of the freeholder aforesaid " ? This is what our authors posed that the Board of Trade shall sit to hear applications by trustees seem to say; for we presume that their phrase, “after the freeholder," for their release. If it is intended that it shall all be done by corre- means, after the determination of the freeholder's estate." spondence, we think it will be anything but satisfactory. Then, again,

Another interpretation to be found in the same note seems also to under sub-clause 3 of that clause, is a trustee's conduct to be adjudicated have been arrived at by the simple process of omitting some of the upon behind his back, upon representations made by creditors, without Acts most sigaificant words.

“ The power, say

the learned editors, his baving an opportunity of answering them? We presume not, but

“to convert into a fee is given to any person beneficially entitled ' certainly the clause as drawn is delightfully vague upon the point. 'to possession' (see definition of 'possession,' s. 2 (iii.), ante). Thus a

tevant for life, legal or equitable, and whether the land is subject to any incumbrance or not,' can effect the conversion." But some words have been here omitted which we can by no means consent to overlook.

The words of the Act are, any person beneficially entitled in right REVIEWS.

of the term,

to possession," &c. If the words in italics

have no meaning whatever (as our authors, who omit them in their THE CONVEYANCING ACT,

comment, seem to think), it is a strange thing that they should have The ConveyANCING AND Law of Property Act, 1881, AND THE VENDOR exclude the right of a mere equitable tenant for life; who is entitled,

been placed in the Act. If they have any meaning, they seem to AND PURCHASER Act, 1874, with Notes ; AND FORMS AND PRECEDENTS not in right of the term, but in right of the trust. ADAPTED FOR USE UNDER THE Acts ; Also The SOLICITORS' REMUNERA- well-known and common one: we say, “in right of the Crown," "iu

The phrase is a TION Act, 1881. By EDWARD PARKER WOLSTEN HOLME, Barrister-at- right of the Duchy of Lancaster,” &c., in precisely the sense which our Law, one of the Conveyancing Counsel of the Court; and RICHARD opinion would assign both to the phrase " in right of the term " and to OTTOWAY TURNER, Barrister-at-Law. Wm. Clowes & Sons (Limited).

the phraso “in right of the trust." This is a question of practical We take an early opportunity to review a work of which the issue has importance; for we have no confident expectation that the courts will been expected by the profession with very great interest. The estimate endorse the opinion of our learned editors. which the reader will form of the merits of the votes will probably depend The meaning of section 17, which aims at restrictiug the consolidation upon his view of the easiness or difficulty of the Act with which they are of mortgages, has been keenly discussed in our columns; and we chiefly concerned. If he thinks that the Conveyancing Act is a simple, naturally looked to the learned editors for a solution of every difficulty. lucid, straightforward composition, such as "he who runs may read” with. But the serious questions raised by the peculiar wording of the sectionout either balting or feeling puzzled, he will form a high opinion of the for example, the meaning of the phrase, the mortgage deeds,” in subdiscretion of the learned editors, whose notes are not numerous and are section (2), and of the phrase, the mortgages,” in sub-section (3)--are many of them very short. But the reader who feels doubts and difficulties evaded, or rather, thrust aside by mere dogmatism. “He” (i.e., the will receive little help from a work which seems to have been constructed mortgagor) " is put in the same position as if he were another person upon the hypothesis that the Act shines by its own light; and that making the mortgage, consequently the surplus proceeds of a sale, . doubts are absurd, not to say impious. It is very natural that the under one security cannot be applied to make good the deficiency of the learned editors should be loath to admit that the Act needs a perpetual other security” (p. 43). Not to cavil at words (though the words in series of explanatory ukases in order to make its meaning clear. Still italics might present some difficulty to a metaphysician), we must remark we think that, putting out of the question our own humble efforts, the that we can find nothing in the section about the identity of the mort. difficulties wbich have been pointed out by other editors of the Act are gagor; and if the learned editors think that their proposition follows by quite numerous and important enough to call for some explanation. It necessary logical inference, they would have done well to show the steps by appears, however, that for the elucidation of doubtful points not noticed which it is reached. To us it seems to require a great deal of demon. in the present book the reader is to seek information elsewhere. “ Thestration. reader,” say the learned editors, “is referred to the very useful and The note at p. 83 on section 63, dealing with the “ all-the-estate carefully written work of Messrs. Aubrey St. John Clerke and Thomas clause," does not seem very satisfactory. "The section," say the learned Brett on the Conveyancing Act, containing explanations of the editors, "does not say that every conveyance shall be deemed to contain effect and meaning of various sections. On a few points it will be found this clause, which might be inconsistent with the terms of conveyance, that opinions differ."

as the word conveyance' includes lease.'The words of the Act It is superfluous to say of a book commended by such distinguished are, “Every conveyance shall

be effectual to pass all the authorship, that it contains many valuable observations. That it also estate," &c. It seems, then, that there is an important difference contains not a few observations (some of them will be presently noticed) between a conveyance which is “deemed to coutaiu" the "all-theof which the value is much less obvious, is a much more surprising cir. estate clause, and a conveyance which " is effectual to pass all the cumstance. We think that one of the most useful parts of the book is estate." The only difference between them visible to our eyes, is one the general summary, with which it commences, of the changes effected which is as far as possible from being favourable to our learned editors,



[ocr errors]

yet it

The second expression seems to us to be a good deal stronger than the judges is that a pleading should be nearly, if not quite, as particular as first; so that upon their own interpretation, the section seems to be more a special case. We should like to make those judges go back to the dangerous than it would have been if it had been “deemed to contain junior bar for a short time and undertake a large pleading business. the “ all-the-estate" clause. We do not, on the whole, doubt that the Every pleader knows how difficult, or practically impossible, it is to courts will contrive to extricate themselves from this difficulty.

But we

secure that degree of particularity at an early stage of a case, and how more than doubt if they will get any help from the suggestion of the difficult it is in practice to frame pleadings so as to avoid objectionable learned editors, that the premises would be controlled by the haben generality on the one hand, and on the other, particularity which might dam: Co. Lit. 183a." We have refuted that proposition once before in prove fatal at a later stage. our columns, vol. 26, p. 23 ; and we happen to know that our opinion is It is not easy to estimate the value of a work like the present until it shared by a practitioner of the highest reputation for profound and has been tested by use. It is impossible for a reviewer to read it accurate knowledge of this branch of the law. We may also add that through for the purposes of a review. So far as we can judge from a our doctrine is not far to seek; for it may be found in Davidson's Pre- necessarily somewhat cursory observation, the work seems very well done. cedents, volame 1, 4th edition, p. 102: a fact of which we were not aware One of the most valuable features of the old work was the collocation when we penned the refutation aforesaid.

with the forms on each topic of notes containing the decisions on a great The obscurity of many passages in the Act is curiously illustrated in number of the points that most frequently arose in practice in connecthe potes by the strange confidence with which any inference is drawn tion with such topic. It is a great advantage to have these notes which happens to suit the wishes of the commentator. One example of brought down to the present time by including the cases decided since this has been already mentioned. Another occurs at p. 60, in a note the last edition ; and so even if the precedents were of less value than upon section 30, which enacts that trust estates shall, upon the death of they appear to be, or even of no value, the book would not be valueless. a sole trustee, devolve to his personal representatives. Hereupon we The book has been brought out under circumstances of difficulty, the have the following note :-" If a testator wishes that that his trust estates period of its appearance being one of trausition. As an instance of the should go to particular persons, bo can appoint them executors for that difficulty under which its authors have laboured, we would refer to the special purpose.” The words of the Act by no means obviously warrant discussion, on p. 158, with regard to the general averment of perform · this inference. Because a freehold estate is, under certain circumstances, ance of conditions precedent. But we, nevertheless, venture to think vested in the executor by force of the statute, it does not follow that the that the work will be found one of considerable value and usefulness. freehold is so completely impressed with the quality of personalty as to make the peculiar machinery of special executors applicable to its devolution. We observe among the Addenda et corrigenda, at p. xxiv., a note

CORRESPONDENCE. referring to that passage in section 65 of the Act, which speaks of rent reserved on a lease as having“ become barred by lapse of time," which

JUDGES CHAMBERS. we venture to think owes its origin to certain comments made by us a fortnight before the publication of this edition. “Though the statute

[To the Editor of the Solicitors' Journal.] of Limitations does not apply to rent reserved on a lease, .

Sir,-I am not in the secrets of Mr. Crowder's committee, but, in is conceived that a release of the rent would be presumed from non-pay- common with others of your correspondents, I trust we shall find it ment during a long period.” We did not expect that this lame expla- dealing practically with the conduct of business at judges

' chambers. pation of an inept phrase in the Act would be caught at and paraded by I observe that, although the “omnibus summons" finds favour with these learned authors.

no one except its inventors and the Council of the Incorporated Law Society, the suggestion of allotting causes to particular masters has been

favourably received-by yourself amongst others. PLEADING,

In considering this suggestion it should be remembered that the BULLEN AND LEAKE'S PRECEDENTS OF PLEADING.–PART I. Fourth Queen's Bench masters now discharge duties which in the Chancery Edition. Revised and adapted to the Present Practice of the Queen's Division are distributed amongst registrare, chief clerks, and taxing Bench Division of the High Court of Justice. By Thomas J. BULLEN, masters. Not only so, but they act as referees. Esq., Special Pleader, and CYRIL Dodd, Esq., Barrister-at-Law. Stevens I readily agree that the chancery way is preferable in cases suited & Sons.

for it, but to achieve the desired object the staff of the Queen's Bench This purports to be the fourth edition of the well-known work on

Division must be re-arranged—and increased. And here we strike against Pleading by Messrs. Bullen and Leake, but it may be more correctly

a solid obstacle to improvement.. No doubt, in former times the described as a book of new precedents of pleading by other authors, whic” arrangements of the courts, and the emoluments of officials

, were made with works up in the new precedents and the notes thereto as much of the old little regard to the public purse, but in these days a beggarly cheese. material as could be rendered available. The authors very truly say paring policy appears to rule which disregards the just claims of the that the precedents cannot be of the same advantage to the pleader under suitors, whose large contribution to the cost of the administration of the present system as precedents were under the former system. This is justice entitles them to the services of the best men in every grade of most undoubtedly true. The book comes into the world at a gloomy and the judicial staff. This policy, which nullified the appointment of doubtful season eo far as the fortunes of such a work are concerned. The

a Chief Judge in Bankruptcy for the sake of saving £5,000 a year, and last suggestious in the way of law reform point to the abolition of which has reduced the salaries, while adding to the fatigues, of the Lords pleadings to a very great extent, and if these suggestions are carried into Justices, and hurries the judges about the country on additional circuits, effect it may be that the utility of precedents of pleading will be still without (I believe) any compensation for the additional expenses thus further curtailed. Still, even then, pleadings in certain cases will be

thrown on incomes worth, relatively, much less now than when they were necessary, and we cannot but think that a work of this nature must, in

fixed fifty years ago—this miserable policy, I say, will no doubt veto any event, be useful.

the outlay of a single shilling on such an addition to the Queen's Bench Precedents even under the old system could rarely be adopted verbatim, staff as is clearly needed in the interest of the suitors. and under the new system pleadings must be still more in the vature of

Then is there any other way of doing it ? There are still some office: original compositions, but precedents are still useful as indicating the connected with the courts which are sinecures, or nearly so, but have lines on which pleadings should be framed, and the mode in which been refilled when they might have been abolished without detriment difficulties of expression and arrangement that occur to the pleader in the to the public. These may hereafter be suppressed, but we canno; wait various classes of cases with which he has to deal, may be met. We for the extinction by natural causes of these vested interests. The only suppose that few practical persons who llave since the Judicature Acts course left open seems to be a small increase on the fees in actions; and been called upon to frame pleadings have not first in each particular it seems to me that, say, ten shillings so added in the course of an action case naturally turned to the old form of pleading in Bullen and Leake, carried to notice of trial, and five shillings in other cases, would not be and considered how far it was available in a changed form to the new

felt by the suitor. Indeed, it would not really be an additional system. The old form often gives, as it were, the skeleton which, under burden if the suitor gains in dispatch of his business, for dispatch in the new system, is to be clothed with flesh; and just as no man can be a

inost cases means saving of money. good painter without a knowledge of anatomy, so we doubt whether any

The prescription of the Legal Procedure Committee is, to be sure, person can be a good pleader under the new system without some study simple evough: it is “peel the solicitor.” Increase the trouble, take away of the old forms. The owner of this book has the advantage of having the business, cut down the charges. Our council seem to bave perused that process which everyone naturally went through for himself, gone this prescription with a light heart, or with very exemplary meekness. through for him by a gentleman who, having largely assisted in the proo with similar equanimity, I know not.

Whether solicitors, as a body, are prepared to be thus cuffed and kicked duction of the last edition of the former work, is, presumably, particularly

X. well qualified for the purpose.

It is a bold thing at the present day to put forward a pleading as a precedent. The whole matter is now so much at large, and, with great

THE ALIENATION OF CROWN LANDS. respect to them, some judges have talked so very unpractically about the

[ To the Editor of the Solicitors' Journal.] mode in which pleadings should be framed, that it is very difficult to Sir,-Mr. A. R. Fairfield has, in a letter published in your paper of say now what is good pleading and what is not. The idea of some December 24, drawn attention to what he considers an erroneous state

ment of the law with regard to the alienation of Crown lands in the “ Law of Waters,” p. 15. He states that the statute 1 Anne, c. 7, which

OBITUARY. invalidates, except under certain conditions, all grants of Crown lands, bas been “ wiped off the Statute-Book" by the Statute Law Revision Act, 1867. If he had consulted the Revision Act itself, and not the

MR. JUSTICE O'BRIEN chronological table only, he would have found that sections 5—7 of the The Hon. James O'Brien, senior puisne judge of the Queen's Bench Act of Anne, which are the only sections relating to the subject, are not Division in Ireland, died at his residence, St. Stephen's-green, Dublin, on the repealed, and are, therefore, still in full force where not repugnant to 29th ult., at the age of seventy-six. Mr. Justice O'Brien was the fourth the later Acts which transfer the management of Crown lands to the son of Mr. James O'Brien, of Limerick, and was born in 1805. He was Woods and Forests and Board of Trade. I venture, therefore, to submit educated at the Belfast Academy and at Trinity College, Dublin, where he that the law is not incorrectly stated in the work of Mr. Forbes and took the usual degrees, and was called to the bar in Ireland in 1830. In 1841 myself, though I admit that it might have been more clearly expressed; he was created a serjeant-at-law. He occupied for many years a leading

(wben only ihirty-six rears of age) be became a Queen's Counsel, and in 1848 and that Crown lands are still incapable of alienation by Royal grant, position at the Irish bar, and in 1854 he was elected M.P. for the borough of and can only be conveyed to a subject by virtue of powers conferred by Limerick in the Liberal interest. He beld the seat till 1858, when he was statute.

appointed a puispe judge of the Court of Queen's Bench. Mr. Justice The last of the Acts cited by Mr. Fairfield, and which is, I think, the O'Brien had been twenty-three years on the bench, and had earned for himself only one dealing with foreshores expressly, was omitted from the text of a reputation as a sound constitutional lawyer. He was very popular in the p. 15 by an oversight discovered before publication, and is to be found in profession, and bis death is lamented by all parties in Ireland. the Errata et Addenda at the beginning of the work, with directions for its insertion.

H. J. W. COULSON. Brick.court, Temple, Jan. 2.



Mr. John MACDOUGALL GIBSON has been appointed Subgritate Procureur [To the Editor of the Solicitors' Journal.]

and Deputy Advocate-General for the Colony of Mauritius. Sir, --You inay think the enclosed advertisement from the Midland Mr. Charles Spencer Thorn, solicitor, of Worcester, bas been appointed Counties' Herald worth notice.

a Commissioner to adicioister Oatbs in the Supreme Court of Judicature. It is curious both from its estimate, from a tenant's point of view, of Mr. John BLOSSETT MAULE, Q.C., has been elected Treasurer of the Inner the benefit of a lease on the present (panic) terms, and for the cool Temple for the ensuing year. assumption that solicitors as a class (saying nothing of land agents) are Mr. Thomas MAYNARD How, solicitor, of Sbrewsbury, bas been appointed accessible to bribes for robbing their employers.

Clerk to the newly formed Shrewsbury School Board. Mr. How was admitted ARTHUR L. HELPS.

a solicitor in 1846. [The following is the advertisement referred to :

Mr. SAMUEL PRENTICE, Q.C., has been elected Treasurer of the Middle Farm wanted. To solicitors, land agents, &c.— £50 commission will Temple for the ensuing year. be paid for negotiating a lease of 200 to 400 acres of good early land, at Mr. Arthur BRANDRETH, barrister, bas been appointed Judge of the Chief present value. Farm house must be within two miles of considerable Court of the Punjaub. Mr. Brandreth was called to the bar at Lincoln's-inn town.-Address, -- Birmingham.”]

io Trinity Term, 1868.

Mr. John Peter De Gex, Q.C., has been elected Treasurer of Lincoln's-inn

for the ensuing year, REGISTRATION OF WILLS.

Mr. Sidney HACKER, solicitor, of Totnes and Newton Abbott, has been [To the Editor of the Solicitors' Journal.]

appointed Deputy-Coroner for the Totnes District of Devonshire. Mr. Hacker Sir,--Having regard to the remarks in Mr. Dart's valuable work on Michelmore, clerk of ihe peace for Devonshire.

was admitted a solicitor in 1875. He is in partnership with Mr. Henry Vendors and Purchasers, in which he questions Lord St. Leonards' statements on the subject, I should be glad if I could ascertain through your

Mr. ALEXANDER SMITH KINNEAR, LL.D., Q.C., Dean of the Faculty of columns whether it is or is not the practice of the leading firms to Scotland, in succession to the late Lord Curriebill.

Advocates at Edinburgh, has been appointed a Judge of the Court of Session in register a probate where the testator had leaseholds only.

T. G. S.

Mr. Augustine Edwin Tower, solicitor, of 90, Lower Thames-street, E.C., [The reference is, we presume, to 2 Dart's V. & P. 683 (5th ed.). -Ed. has been appointed a Commissioner to administer Oaths in the Supreme Court

of Judicature. S.J.]



solicitors, 1, Great Winchester-street, London, at Petworth and Pulborough,

Sussex, and at Erith and Dartford, Kent (Daintrey, Hickson, & Parish, and,

Parish, Daintrey, & Hickson). So far as regards the said Frederick Parish.
Dec. 31.

[Gazette, Dec. 30, 1881.] At the usual monthly meeting of the directors, held at the hall of the Incorporated Law Society, Chancery-lane, on Thursday, January 5, the

Messrs. H. KimBER & Co., solicitors, of 79, Lombard.street, E.C., have following being present-viz., Mr. Desborough (chairman), and Messrs. taken into partnersbip Dr. William Wallworth Elliott. The style of the firin Boodle, Cronin, Desborough, jun., Hedger, Lucas, Parkin, "Sidney Smith, remains as heretofore. Styan, Nisbet, H. Vallance, and A. B. Carpenter (secretary)-several appli. CHARLES JAMES HUnter and William JAMES Curtis, solicitors, 13, Hal. cations for grants were considered, and the ordinary business was transacted. ford-street, Leicester (Hunter & Curtis). Deo. 31. The said Williain

James Curtis will in future practise at 13, Halford-street, Leicester, aforesaid on his own separate account.

ROBERT RICHARDSON and Arthur Morris, solicitors, Bradford, (Richard

son & Morris). Nov. 30. Robert Richardson will continue to practise at the LAW STUDENTS' JOURNAL,

Swan-arcade, and Arthur Morris will practise at 1, New Ivegate, Market


JAMES Martin RUTTER and James Finney, solicitors, Bolton. Dec. 30. A special meeting of the society was held on Tuesday evening, the 20th ult., William MoselEY Tayler and John Ward, solicitors (T.yler & Ward), at the Law Library, Cross-street, the chair being taken by G. W. Fox, Esq., No. 27, Great James-street, Bedford-row. Dec. 31. solicitor, and the vice chair by C. H. M. Wharton, Esq., barrister-at-law. A

[Gazelte, Jan. 3, 1882.] lecture was delivered by Henry Staffurth, Esq., LL.M., barrister-at-law, on “ Easements." The lecturer dealt with the subject in a concise but exhaustive manner, and the lecture was discussed by Mr. Peacock and several honorary members of the society. A vote of thanks to the lecturer and chair

COMPANIES. man closed the proceedings. Members present, thirty-five.


LIMITED IN CHANCERY. The Dublin correspondent of the Pall Mall Gazette says it is believed that WITHERNSBA PIER, PROMENADE, GAS, AND GENERAL IMPROVEMENT COMPANY, LIMITED. the Government will not fill up at present the vacancy ou the Irish Bench

-Petition for winding up, presented Dec 28, directed to be heard before Hall, V.C., caused by the death of Mr. Justice O'Brien.

on Jan 13. Bell and Co, Bow churchyard, agents for Woodhouse, Kingston upona Hull, solicitor for the petiticner

(Gazette, Dec. 30.]

« PreviousContinue »