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6. Would my
vacation judge to sit in, if it were not for the express assignment women might be as usefully employed as men as writers, bookof the interval to the racation judges by rule 7. We presume keepers, and general clerks,” and he carries out his conviction to that the question was considered before Tuesday's sitting was the extent of occasionally employing them out of his office. appointed, but we must confess that we should be glad to see all He now wants to employ them in his office, but he doubt removed by a “rule 8.”
would like to know what the effect would be. Personally, he says, he “should not object" to the presence of the young lady
clerks; and so far, no doubt, the ground is a good deal cleared. THE CONVEYANCING Act contains a startling warning of what clients object ? ” asks the solicitor. Well, we should think no
But there remain many serious considerations. people may expect who rashly trust to statutory powers to be silently implied in deeds. They may chance some day to find that on the age and sex of the client. Young men clients might not only
this very the Act which confers them has been repealed without any saving of
not object but approve; old men clients might raise no serious the powers of those who have trusted themselves to the tender mercies of the Legislature. Such, in the opinion of some learned with suspicion on the innovation, and spinster clients of advanced
; persons, has been the fate of Lord CRANWORTH's Act: a lesson age would inevitably change their solicitor. Over and above the which ought not to fall unheeded. Section 71 of the Conveyancing clients there remains the question, how the innovation would be Act provides that :
received in the home circle of the solicitor. From the fact that “ (1.) The enactments described in Part III. of the Second Schedule to he “should not object” to the young lady clerks it would not this Act are hereby repealed.”
necessarily follow that his female relatives would regard the This Part III. of the second schedule contains parts II. and III., proposal with approval. We presume, however, from the cirbeing sections 11–30, of Lord CRANWORTH's Act; of which part cumstance that the solicitor states that he “shall engage two II., being sections 11-24, contains provisions similar in outline young women as writers,” and “ will see what stuff they are made to those contained in the sections of the Conveyancing Act upon of, that all difficulties of this kind have been removed. There which we comment elsewhere in our columns, for making powers still remains, however, the question of the effect of the introduction of sale, &c., incident to the estate of a mortgagee.
of the “two young women on their male co-clerks, and it is this “? (2.) The repoal by this Act of any enactment shall not affect the consideration which appears mainly to harass the solicitor. He validity or invalidity, or any operation, effect, or consequence of any in thinks that "at first, no doubt, flutter and flirtation” would be strument executed or made, or of anything done or suffered, before the the result; but when the novelty had worn off the innovation coromencement of this Act, or any action, proceeding, or thing, then perd would, “ he feels sure, work satisfactorily.” We cannot say we ing or uncompleted ; and every such action, proceeding, and thing may be feel so sure, Here again the question depends, to a large extent, carried on and completed as if there had beeo do such repeal in this Act, but this provision shall not be construed as qualifying the provision of this on the characteristics of the subjects of the solicitor's experiAct relating to section forty of the Settled Estates Act, 1877, or any ment. We should think that if he means to have any work done former Act repealed by that Act.”
in his office he must either restrict his male clerks to persons Upon the effect of this repeal we shall cite part of a note upon tinguished by an appalling lack of personal charms.
of mature age, or take care that his “two young women” are dissection 71 given by the authors of what, in our opinion, is the most useful commentary hitherto published upon the Act. “It seems," they say (CLERKE and BRETT's Conveyancing Act, p. 171), “to have been overlooked that in some cases provisions have been omitted from certain instruments in reliance upon these WHAT SHOULD BE THE FORM OF statutory powers; and it does not seem possible by any construction
MORTGAGE? of the section, however liberal, to continue in favour of those instruments the operation of the statute" [i e., Lord CraNWORTA's Act] This question is asked on all hands now that the Conveyancing “ beyond the date of its repeal—i.e., 1st January, 1882. It must Act, 1881, has come into operation, and we shall attempt to give be observed that the substituted provisions in sections 19–24 of an answer to it. this Act” [i.e., the Conveyancing Act] “apply only where the We may assume in the first place, with Mr. Prideaux, that the mortgage deed is executed after the commencement of the Act.” statutory form of mortgage given in the third schedule of the If this opinion is well grounded, the position of mortgagees who Act “ will not be generally adopted.” The principal draftsman of have silently relied upon Lord CRANWORTH's Act will be truly the Act has himself stated in his book (p. 58) that the forms in pitiable. We incline to think that the courts may possibly this schedule “ will probably only be used in quite simple cases, contrive to squeeze the desiderated meaning out of section_71; and for loans on small properties." As doubt as to the efficacy of holding, perhaps, that an exercise of a power given by Lord auy part of the Act is certainly not a prominent characteristic of CRANWORTH's Act after the date of its repeal is “ a consequence" the work in which this remark occurs, we may conclude that the of the mortgage deed; though it is properly a consequence, not framer of the form in question has no great confidence in its of the mortgage deed, but of Lord CRANWORTH's Act. We are completeness or safety. It is not difficult to show that there are almost ashamed to propose such a construction as possible ; and it reasons for this distrust. First of all, there are some questions would be libellous to accuse anyone of having intended to effect upon the construction of the provisions of the Act relating to the such a purpose by such a method. The mortgagees aforesaid will, statutory form. Section 26 provides a form of covenant for therefore, owe their safety, if they are safe, rather to the Con- payment of the mortgage money and a proviso for redemption, and veyancing Act's inadvertence than to its design. And since Lord enacts that “the provisions of this section shall applý” to the CRANWORTH's Act will have escaped—if, indeed, it has escaped form of statutory mortgage in the third schedule ; but it omits -by the skin of its teeth, there must always be room for the fear to enact that the provisions of sections 19—24, by which lest the Conveyancing Act, when its turn comes, should not escape are implied numerous powers, shall also apply to that form. If it at all.
is suggested that they must do so, since à mortgage in that form is “a mortgage made by deed” under section 19, we
reply that a mortgage in the form in the fourth schedule is THESE ARE Days in which no practitioner knows what changes he equally a mortgage made by deed, yet it has been considered may have to adopt, and we have always considered it one of the necessary to provide, by section 57, that “deeds in the form of, most important functions of a legal journal to advise its readers as and using the expressions in, the forms” in the fourth schedto the mode of meeting the various difficulties which arise in the ule “shall, as regards form and expression in relation to the working of a new practice. We have, therefore, turned with interest provisions of this Act, be sufficient.” Again, under section 26 to the letter which appeared in the Times a few days ago from only such variations and additions can be made to the statu“ A Solicitor,” asking for advice as to the best means of carrying out tory form “as circumstances may require”—a provision which a revolution in his office. He states that he is “a solicitor in does not obviously authorize the insertion of any variations or good practice, with a large staff of clerks—all men, young or additions which may be agreed upon by the parties. We do not middle-aged.” He has “long thought, and been convinced, that attach much importance to these doubts, but there is no reason why a mortgagee should run the risk of any doubt, however the implied powers and provisions of the Act relating to mortslight it may be, as to the operation and efficacy of bis gages should be allowed to come into operation; and in order to security. There are other reasons why this statutory form arrive at an answer to this question, it is necessary to consider should not be used. It is expressly confined to
to mort- the parts of the Act relating to this matter. First of all, as to leases, gages of land, and will not apply to mortgages of land and per- section 18, by the first sub-section, gives in the absence of a consonalty, so far at least as regards the personal property therein com- trary intention ") a power of leasing to every mortgagor of land prised; and the use of the words " by way of statutory mortgage” while in possession.
while in possession. We must leave our readers themselves to is essential to its validity ; moreover, additional provisions which consult section 18 for the details of the kinds of leases thereby may be necessary cannot very conveniently be added. Thus a authorized, with which we find no great fault. They seem to proviso for reducing the rate of interest on punctual payment accord very well with the usual practice, so far as the practice cannot be conveniently inserted in a form of mortgage which (which is by no means common) of inserting powers of leasing in contains no express covenant for payment of interest.
mortgages exists. Then the section enacts (sub-section 8) that a We think, therefore, that the form contained in the fourth counterpart of the lease shall be executed by the lessee and schedule of the Act is more likely to be adopted than the form delivered to the lessor ; and (sub-section 11) that in the case of a of statutory mortgage contained in the third schedule. Upon lease made by a mortgagor, he shall deliver to the mortgagee first the form in the fourth schedule, the first thing to be observed is in priority a counterpart duly executed by the lessee. But in its that no peculiar authority or efficacy is given to it by the Act. anxiety to protect the interests of the lessee, sub-section (11) proSection 57 provides that “deeds in the form of, and using the ceeds to enact that he shall not be concerned to see that the lastexpressions in the forms given in the fourth schedule to mentioned provision is complied with. And sub-section (8) proAct, or in the like form, or using expressions to the like vides that the execution of the lease shall, in favour of the lessee effect, shall, as regards form and expression in relation to the and persons deriving title under him, be sufficient evidence of the provisions of this Act, be sufficient.” That is to say, if a execution and delivery to the lessor of the counterpart. And as mortgage is in this form it will avail to give the parties the though this were not enough, we find at the conclusion of the benefit of all the powers and provisions to be implied under the section the following extraordinary provision :Act. So will also any “mortgage made by deed." It is not to be "(17). The provisions of this section referring to a lease shall be construed assumed that this section makes the forms in the fourth schedule to extend and apply, as far as circumstances admit, to any letting, and to an sufficient for all purposes. Nor will section 66 avail to protect agreement, whether in writing or not, for leasing or letting.” the solicitor using them, except as regards liability for not We shall make no attempt to predict the meaning which will negativing the implied powers and covenants given by the Act. ultimately be affixed by the courts to language of such tremendThe forms in the fourth schedule, in fact, have, we conceive, just ous latitude. We find in it nothing, so far as it contemplates the same authority as ordinary forms framed by Mr. Wolstenholme parol leases and agreements for leases, to limit these within the would have, and no more. There is, therefore, no reason why the requirements of the Statute of Frauds. The same degree of unphraseology of these forms should not be varied where it appears certainty must also exist whether the leases, other than parol to be less appropriate than that hitherto employed. And it is to leases, which this sub-section contemplates, are within the 8 & 9 be observed that Mr. Wolstenholme, in constructing the “forms in Vict. c. 106, s. 3; and it is a noteworthy fact that this lastmortgage deeds” in chapter 3, section 1, of Part II. of his book cited enactment made express reference to the existing, law -- which, of course, are intended to be used in connection with the touching written and parol leases. Moreover, the words of forms in schedule 4—has not adhered to the phraseology of the the sub-section under consideration, if taken in their literal meanforms in the Act. Thus, in the covenant for fire insurance, at ing, seem to authorize a neglect of the protective restrictions, ás to p. 128, he always inserts the words “the said " before the names number of years, rent, &c., previously laid down. of the parties, in place of the severe “A.” of the form in the So far we have been speaking from the point of view of the schedule. He says in the covenant, 80 long as any mortgagee. The section also contains some provisions which are money remains due under these presents,"
while the not unlikely to circumscribe a good deal its practical utility from form in the schedule says, as long after that day as any the point of view of the mortgagor. principal money remains due under this mortgage,” and so forth.
“(13.) This section applies only if and as far as a contrary intention is not On all these verbal matters we think that Mr. Wolstenholme's expressed by the mortgagor and mortgagee in the mortgage deed, or otherwise second thoughts are better than his first, and ought to be adopted in writing, and shall have effect subject to the terms of the mortgage deed or throughout the form, otherwise the mortgage will present an of any such writing, and to the provisions therein contained.” instance of the gravest vice in conveyancing—the use of different From this it seems to follow that an intending lessee could not expressions to signify the same thing in different parts of the safely deal with a mortgagor as lessor, without satisfying himself, same deed.
Before leaving this form of covenant to keep not only as to the contents of the mortgage deed, but also as to up fire insurance given by Mr. Wolstenholme, may we be the contents of every writing, if any, executed by the parties and permitted to ask why he considers it necessary to add a pro- bearing upon the matter in hand : an evidently impossible undervision enabling the mortgagee to insure in default of the mort- taking. Such writings would, of course, be in the custody of the gagor ?
Can he have forgotten that, by sections 19 (ii.) and mortgagee, and the mortgagor would have no visible motive for 23, such a power is to be implied in all mortgages made by deed ? incurring the expense of a duplicate.
It would be necessary If we are right in supposing that the phraseology of the form in the to inspect the writings answering to this description in the fourth section may be varied—and we have the further authority of custody of each of the mortgagees, if more than one; for though Messrs. Prideaux and Whitcombe for this view—(see Precedents, it does not clearly appear from the section what effect such a vol. 1, p. 503, note b.)—then we agree with those learned writing if executed only by one mortgagee would have upon the authors in thinking that there is no reason why, in the proviso rights of another, it seems to be clear that such a writing would, for redemption, the words " the persons claiming under him," as against the mortgagor and his lessee, preserve the rights of the which occur four times, should be adopted in preference to the mortgagee who had executed it. shorter expressions hitherto in use. There is no possible need for If a lease purporting to be made under this section by a mortthe words,“ subject to the proviso for redemption following gagor should be void by reason of any defect in the execution of (namely)," and as regards brevity, the form of proviso adopted by the power (such as the concealed existence of any such writing the learned authors last mentioned—"Provided always that if as in the last paragraph mentioned), we may doubt whether the the said sum of £- with interest thereon, shall be paid on lessee would not be in a worse position than he would have been day of
next, according to the foregoing in if his lease had been made by the mortgagor's own sole covenant in that behalf, the said premises shall, at the request and authority under the existing law. We will waive the question, cost of the said A. B., his heirs or assigns, be re-conveyed to him whether a lease purporting to be made by an invalid execution of or them ”—has the advantage of expressing in about fifty words a power, creates an estate by estoppel; because we refer more (exclusive of names) what the form in the fourth schedule takes particularly to the more important right of redemption. Under (without counting names), over eighty words to express. the existing law a lease made by the mortgagor on his own sole The next and, perhaps, the most important question, is whether authority is voidable by the mortgagee; but (though the ques
tion bas never been actually decided) it is the better opinion that from experience of the way in which official assignees performed that the lessee would have a right to redeem. A doubt may be felt duty under the Act of 1861. The official receivers may sweep like whether a void lease purporting to be made under this section brooms” to begin with, but we anticipate that they will soon get tired of would confer any such right.
that, and not interfere with the investigations of the creditors' represen
tatives or seek to carry them any further, unless urged to do so by Lastly, we find something very mysterious in the following independent creditors. True it is that it is provided by clause 46, subsub-section :
clause (9.), that it shall be part of the duties of an official receiver “to **(12.) A contract to make or accept a lease under this section may be take such part as may be directed by the Board of Trade in the public enforced by or against every person on whom the lease, if granted, would be examination of the bankrupt"; but we do not think that will make binding."
much difference, as we apprehend the Board of Trade will have to rely A lease granted under the section by the mortgagor would be upon the official receivers for information as to the fact of every bankbinding on the mortgagee: could an intending lessee enforce ruptcy, and will practically only be able to give such directions as may
be suggested by them. against the mortgagee specific performance of a contract to
Clause 34 provides for the close of the bankruptcy by an order of the grant a lease entered into by the mortgagor? This would be a court when a composition or scheme of arrangement has been approved, grotesque conclusion ; but it seems to be plainly within the lan- or the trustee reports to the court that the whole property of the guage of the Act; and it operates no manifest absurdity, for the bankrupt has been realized for the benefit of his creditors, or so much mortgagee is under the section quite competent to give effect to the thereof as can, in the opinion of the trustee, be realized without need. contract. We are not a little curious to know whether such con- lessly protracting the bankruptcy,” and for notice thereof to be pubtracts could be enforced by summons at chambers : see section 69, joint opinion of the trustee and committee of inspection” that all
lished in the Gazette. Section 47 of the Act of 1869 requires sub-section (3).
the property has been realized which can be realized without needlessly We do not propose to examine in detail the remaining sections protracting the baukruptcy. We think their approval in such a case relating to implied forms in mortgages-namely, sections 19—24 ; 1 ought to be obtained, or they should be cited to show cause why such an which refer only to powers conferred upon the mortagee :-(1) To order should not be made. sell; (2) to insure against fire; (3) to appoint a receiver; and The next clause (35) relates to the discharge of bankrupts. It provides (4) to cut and sell ripe timber, while in possession. These powers that (1) when a bankrupt has passed his public examination he may seem to be sufficiently beneficial to the mortgagee; enabling him apply to the court for his discharge, and the court may appoint a day to in some respects to deal more harshly with the mortgagor than is hear same. (2) If the application be made during the continuance of the allowed by the common practice, and in no respect (that we are
bankruptcy it shall only be with the assent of a majority in number and
three-fourths in value of the creditors, “and on a certificate by the aware of) relaxing the present practice to the benefit of the trustee that the bankrupt has duly surrendered his property, and that in mortgagor. It is, therefore, not improbable that mortgagees will the opinion of the trustee there is no further occasion for the bankrupt's retain and use them, unless a sufficient obstacle is interposed by services in the bankruptcy.” (3) On the application the court is to the resistance of mortgagors.
consider a report of the official receiver on the bankrupt's conduct and On the whole, therefore, we conclude that a mortgagee may affairs, and may either grant an absolute discharge, or, on proof of any safely allow the implied powers given by the Act to come into of the facts therein mentioned, refuse the order or suspend it's operation, with the exception of the power of leasing (section 18), operation for a time, or grart it subject to conditions with respect to which, in our opinion, ought to be always expressly excluded. (4) The facts before referred to are (a) that the estate has not and will
. Another part of the Act which it is very desirable to exclude is not realize a sum equal to one-half the proveable debts, and that such section 5, which enables a mortgagee to be redeemed behind his insufficiency has not been caused by the negligence or fraud of the back, and may, as we have shown in a previous article, operate so trustee ; (b) that the bankrupt, if a trader, has omitted to keep proper as to defeat his right to consolidation. There is no provision that books of account during the three years immediately preceding his this section shall apply only so far as a contrary intention is not bankruptcy, or has omitted during such period to prepare once a year a expressed, but there is also no provision that it shall “ have effect, proper balance-sheet of his affairs, or has greatly increased his liabilities notwithstanding any stipulation to the contrary," which leaves by carrying on trade at a loss while insolvent, or has contracted debts ground for a hope that it may be negatived. We think, at all shall lie on him) of being able to pay them”; (c) whether a trader or not
without “reasonable or probable ground of expectation (proof whereof events, that the attempt is worth making. Section 17, relating to if he “has brought on his bankruptcy by rash and hazardous speculations consolidation of mortgages, can undoubtedly (and probably always or unjustifiable extravagance in living, or has put any of his creditors will be excluded.
to unnecessary expense by a frivolous or vexatious defence to any action properly brought against him, or has committed any act by statute made
a misdemeanor in case of bankruptcy"; and (d) that he has within four BANKRUPTCY LAW REFORM.
months of adjudication given a fraudulent preference to any of his
creditors. (5) Notice of the day appointed is to be published and sent [COMMUNICATED.]
to each creditor twenty-one days before such day, and the court may hear
the official receiver and trustee and any creditor who has given to the VII.
court seven days' notice of his desire to oppose ; and (6) the court may, CLAUSE 33 of the Government Bill relates to the examination of bank. as a condition of the discharge, require the bankrupt to consent to rupts, and is as follows:
judgment being entered against him by the official receiver or trustee for " Clause 33.-(1.) Where a debtor bas been adjudicated bankrupt, the any balance of the debts proveable aot satisfied at the date of the court sball hold a publio sitting on a day to be appointed by the court, for discharge; but execution on such judgment not to be issued without the examination of the bankrupt, and the bankrupt sball attend thereat leave of the court," which leave may be given on proof that the bankrupt and sball be examined as to his conduct, dealings, and property.
has since his discharge acquired property available for payment of his “ (2.) The court may adjourn the examination from time to time.
debts.” “(3.) The bankrupt shall not be deemed to bave passed bis pablio We think that this clause will be a great improvement upon the examination until the court by order declares that his affairs have been present law as to bankrupts' discharges. Whilst, however, approving Bufficiently investigated, and that his examination is finished. “(4.) Sections 96, 97, and 98 of the principal Act (relating to dis; which, in our opinion, ought to be more fully considered, and to which
generally of the proposal, there are several points of detail in the clause covery of bankrupt's property) shall bave effect as if the term trustee ' inoluded the offioial receiver.'
we desire to call attention. In sub-clause 2 we think that the assent of
such a large majority of creditors might be dispensed with in case of an We presume it is not intended that the public examination shall be application during the continuance of a bankruptcy. We cannot see appointed until the first meeting has been held and a trustee appointed. that the question of the bankrupt’s discharge can, in any way, affect the That is the present practice, and it would be a great mistake to alter it. realization of the estate, and it often happens, particularly in estates of But from this clause, as drawn, it would appear that the sitting for magnitude, that a bankruptcy cannot be closed for years, owing to com. public examination is to be appointed as soon as an order of adjudica- plications of various kinds. We suggest that in order to meet such tion is made! Then, again, we would ask, by whom is the examination cases, it might be provided that the assent of the creditors, &c., to be conducted ? Snppose the trustee and creditors should be satisfied should not be required in case of an application made after the expiration with a certain investigation, is it intended by sub-clause 3 that the court of, say, twelve months from adjudication, even if the bankruptcy be not shall have power, notwithstanding their being so satisfied, to continue then closed. the investigation ? And is it intended by sub-clause 4 that the official
With regard to sub-clause 3 we have already given expression to our receiver, whether acting as trustee or not, shall have the same powers as views as to the value of official receivers' investigations in our remarks on a trustee to examine a bankrupt, &c. ? If these be the intentions of the clause 33, and those remarks apply equally to this sub-clause. But the section, we do not think they will come to much in the end, judging official receiver's report is not likely to do much harm, of however little practical use it may be, and as that official is such a prominent feature they are liable, is dealt with by the next clause, No. 43. It provides as in the Government proposals we presume that this part of the sub-clause follows :will be adhered to. Sub-clause 4 ought to be carefully sifted and examined—(a.) This, we
“ Clause 43.-Where it appears to the official receiver, from the bankrupt's think very proper, and a most sensible improvement upon the present exceed three hundred pounds, the administration of the estate shall be subject
statement of affairs or otherwise, that the bankrupt's estate is not likely to law as to payment of ten shillings in the pound. (6.) The omission to
to the following provisions: keep proper books of account and make out balance sheets, seems to be
“(1.) The official receiver sball, as from the date of the first meeting of taking a leaf out of the bankruptcy laws of some of the continental | creditors, become and be deemed to bave been appointed by the Board of nations. The Act of 1861 provided that if a bankrupt trader “with | Trade the trustee of the estate, unless the creditors at that or any subsequent intent to conceal the true state of his affairs, wilfully omitted to keep meeting, by the resolution of a majority in number and value of the creditors proper books of account," the court might refuse or suspend his dis present personally or by proxy at the meeting, and voting on the resolution, charge, but that was obviously a long way short of the present proposal. resolve that some other person be appointed trustee. The proposal will operate rather hardly upon illiterate traders, but no “(2.) Unless anotber person is appointed trustee, the official receiver shall doubt the Government anticipate that, by reason of the Acts for com- have power to accept a composition on behalf of the creditors, and any compulsory education, these will become extinct in a little time. When that position so accepted shall have the same effect as if it had been duly accepted time arrives the proposal will, we think, be a highly proper one, but the in pursuance of resolutions of the creditors. illiterate trader is not quite extinct yet. (c.) This is following provisions trustee, the official receiver sball proceed to get in, realize, and distribute the
(3.) Unless a composition is accepted or another person is appointed in section 159 of the Act of 1861. With regard to the “vexatious estate of the bankrupt with all possible dispatcb, and shall not be required to defence” provision, that was a very proper one when that Act was passed, summon any meeting of the creditors after the first meeting unless, in the opinion but appears to us unnecessary with the provisions of order 14 under the of the court, it is expedient that such a meeting be summoned.” Judicature Acts in force. (d.) This provision is new, and, we think, highly proper.
Sub-clause 1.—The proposal contained in this sub-clause does not, we Sub-clause 6 we are inclined to think goes somewhat too far. But in think, amount to very much. We take it that under clause 20, sub-clause any event we suggest that in the concluding sentence the words“ shall tee by the creditors, be the trustee in the case of any bankruptcy, what
10, the official receiver would, failing the appointment of any other trusonly" should be substituted for the word “may,” and the following words added at the end :- " And on notice of the application for such leave oust him from that position in cases within this clause, it would require a
ever the amount of the assets. The only difference is that, in order to being served upon the bankrupt in the prescribed manner.” We think also that some provision should be made as to the discharge under clause 20, sub-clause 9, the creditors are given power to leave the
majority in number as well as value of the creditors at a meeting, and of bankrupts and liquidating debtors under the present Act. There are cases where bankrupts and liquidating debtors are refused their discharge from this clause. But these will not practically make much difference.
appointment of a trustee to the committee of inspection, which is omitted by their creditors who would be entitled thereto if they came within the provisions of this Bill, and we do not think it right that in any alteration the majority in value of the creditors, and a number of trade creditors con
There may of course be cases of very large cash creditors constituting of the law as to discharge it should not be made to apply to them.
Clause 36, sub-clause 1, gives the court power to annul adjudication in stituting the minority in value, but majority in number, where the the following cases :
proposal would act beneficially, but such cases we think will be com para
tively few. "(a.) Where in the opinion of the court an order of adjudication ought not Sub-clause 2.-We strongly object to this absolute power being given to bave been made, or
to the official receiver. It ought, in our opinion, to be subject to accep“(6.) Where it is proved to the satisfaction of the court that the debts of the tance by a special resolution of the creditors. This would not involve bankrapt are fully paid or satisfied, or
much additional expense, and would be much more satisfactory. “(e.) Where a bankruptcy is closed, eithe. n consequence of approval of a Sub-clause 3.–We would suggest the addition at the end of the words composition, or scheme, or otherwise, and the bankrupt has passed his public
or unless requested in writing to do so by one-fourth in value of the examination, and the court, after taking into consideration the report of the
creditors." official receiver, is satisfied that the bankruptcy has been caused by misfortune without any misconduct on the part of the bankrupt.”
Sub-clause 2 is practically the same as the latter paragraph of section 121 of the present Act. In paragraph (c) we think it would be an
CORRESPONDENCE. improvement to insert the words " and obtained his discharge” after the word "examination” in line 3, and to add at the end the words " and
LEGAL PROCEDURE. that none of the facts mentioned in section 35, sub-section 4, of this Act have taken place."
[To the Editor of the Solicitors' Journal.] Clauses 37 to 39 relate to the disqualification of bankrupts to sit in Sir, “If I venture to ask again for a place in your columns it is not Parliament or hold any public office, but that is a question which does 80 much in order to propound opinions of my own as to aid in stirring not come within the scope of these papers, and we do not presume to up interest in the forthcoming deliberations of our society. I think discuss it here.
most working solicitors will agree on these two points-that dispatch Clauses 40 to 42 deal with the punishment of fraudulent bankrupts. means in most cases) saving of money, and that the suitors have a Clsuse 40 extends the provisions of the Debtors Act, 1869, to debtors right to the services of an efficient and sufficient staff in every department petitioning for adjudication. This is, of course, necessary in consequence of the court. of the proposal to allow debtors to file their own petitions for adjudica- It is now many years ago that, at a meeting of the Law Amendment tion and to abolish liquidation proceedings. Clause 41 extends section Society, I heard the late Mr. Field insist, with his accustomed vigour, on 16 of the same Act, so that the term “a trustee in any bankruptcy" shall the first of these points, à propos of his favourite topic, the concentration include an official receiver. We presume it is the intention to give the of the courts and offices; and the impression I then received has been official receiver power under that section whether he is also acting as doepened by all subsequent observation. For example, it must be a trustee or not, but we think official receivers will be very diffident in familiar experience to alī solicitors of mature years how difficult it is to get acting unless set in motion by creditors. Clause 42 is as follows :- a litigant to consent to any compromise till the crisis is actually at hand.
Terms are often arranged on the very eve, or perhaps on the very " 42.-Where there is, in the opinion of the court, ground to believe that morning, of the impending fray. Any needless delay in reaching this the bankrupt has been guilty of any offence which is by statute made a mis point means money
thrown away, and very likely irritation aggravated, or demeanor in cases of bankruptoy, the court may commit the bankrupt
, for created, to form an additional Obstacle to any settlement. That suitors trial, and shall have all powers and jurisdiction requisite for that purpose.
should be forced to a compromise by pressure from the court, whose A similar power was given to the Commissioners in Bankruptcy under duty it is to determine their dispute, is, generally speaking, improper and section 222 of the Act of 1861, but we believe it was seldom, if ever, unrighteous, but that is quite another matter from such settlements as exercised. We remember that when applications under that section were I now refer to. If, on the other hand, the parties are determined to go made to one of the country commissioners of note he invariably declined into court, they are entitled to have their cause adjudged with expedito exercise the jurisdiction, stating that the power was an optional one and tion, but not with hurry. It is so easy to lay all blame on the solicitor, he would not interfere with the jurisdiction of the magistrates, as he con- and that patient drudge is so accustomed to the lash, that it may not sidered that magistrates were better able to deal with all criminal offences be surprising to find the facts of the case, which are plain enough to whether under that Act or not, although he frequently made orders for him, ignored by those in high places. To him it is not surprising, quite creditors' assignees to prosecute. Now we think either the courts should apart from questions of “costs,” that the Chancery Division should be be compelled to exercise the jurisdiction instead of having to go before preferred in many cases. Everything is not perfect there by any means, the magistrates, or else the clause should be omitted altogether. If the but it is notorious that business moves quicker in all that concerns proclause be passed as drawn, we shall have a great variety of practice in the ceedings in court. I admit that the business of the Queen's Bench different courts, but, eventually, we anticipate the courts will generally Division is more multifarious, and more disturbed by circuits, but these decline to act upon the section, as was the case under the Act of 1861. admissions do not dispose of the question.
The administration of small bankruptcies with a view to saving the The inconveniences complained of may be lessened by bringing the very disproportionate amount of costs, to which, under the present system courts and their frequenters locally together, but not removed. Prob
ably the abolition of sittings in Banc would do a good deal to remove the be in other legal localities) there are commissioners who make it a practice cause of them. Under present arrangements, you are informed, for to tont the clerks of solicitors for taking affidavits to be used in their example, that demurrers will be taken on such a day, and you arrange employers' service, and allow such clerks a commission of one-half or oneand inform cliente accordingly. When that day's list comes out, demur. third of the fees payable to the commissioner. There is one person (I rers are “conspicuous by their absence," and this may occur more than cannot refer to him as a gentleman) who, in particular in this part of once. Solicitors, counsel, and suitors who desire to attend the hearing of London, vow derives a considerable income from this sort of work. In their causes all alike flounder in uncertainty and confusion; and the case my opinion there are, amongst many others, two strong objections to be is aggravated when country clients are in it.
urged against this practice. The first is, that it holds out to solicitors' Nobody wishes to suppose-no one does in fact suppose—that the clerks an inducement to dishonesty ; for if a commission is to be judges are indifferent to the convenience of the public, lay or professional, allowed at all it should go into the pocket of the clerk's principal ; and, The system is bad, and should be altered, and if the staff is inadequate, secondly, it is a practice which is unfair to those commissioners a large it should be increased. Whether citizens may claim to have their rights majority I believe—who are anxious to act uprightly, and to preserve ascertained at the publio cost, or no, is a question we need not discuss the honour of their appointment and the well-being of the profession to In this country litigants contribute so very largely to the cost that they which they belong. The matter is 80 notorious that I am surprised are entitled to be properly attended to.
attention has not been called to it before, and I hope if you favour me But then we are toīd that the appetite of solicitors for costs has in- by inserting this letter something may be suggested to abate the evil. creased, is increasing, and ought to be diminished; and a limit of £200 I should say that a letter addressed under the authority of the Council is suggested, below which a lower scale than the present (frequently of the Incorporated Law Society, and sent to every member of the proinadequate) remuneration is recommended.
fession, requesting that a more careful personal supervision may be Here may be remarked a want of acquaintance with the facts of daily exercised by principals over their clerks in relation to the taking of business, in which we find that more difficulties are apt to occur in the affidavits, would have a very beneficial effect. conduct of cases involving from £50 to £200 than in heavier cases. In Gray's-inn, Jan. 10.
A COMMISSIONER TO ADMINISTER OATHS. asserting this I rely on better authority than my own—that of an able and experienced managing clerk with whom I was lately discussing the subject, and he gave this reason : that parties accustomed to large transactions conduct their business with more system and accuracy, and con
AN UNREPORTED DECISION. sequently with less risk of “muddle.” The theory set forth in the report
[To the Editor of the Solicitors' Journal.] of the Legal Procedure Committee, that litigants, particularly in the Sir,-We conceive that it is always a loss, and something of a danger smaller class of cases, know what they mean to go for, and are only to the profession at large when any decision of one of the more disconfused by the lawyers, is "quite too-too." But it is only one of tinguished judges fails to attain the useful publicity of the reports, several proofs to be found in the report, that men, however able and
That this may not be so in the case to which we desire to call the eminent, are not, therefore, qualified to deal practically with matters attention of your readers, is the object of this letter. Our anxiety is the with which they are not conversant. True, the judges and barristers on
greater as the decision in question is not liable to review, and we venture the committee had the assistance of two solicitors, but these gentlemen to say that it nearly affects our brother solicitors, who may at any probably know nothing, and care as little, about actions under £200. On moment find themselves brought within the scope of its ruling. this subject who would value the opinion of Mr. Farrer or Mr. Freshfield?
Shortly, then, the learned Commissioner who presides over the City of The committee now sitting includes, as it ought to include, solicitors of London Court, and to whose judgments and remarks on men and things that class, but does not consist of them; and many of us are hoping for you bave from time to time had occasion to draw attention, decided a few practical treatment of some of these questions.
days ago, in a case in which we were plaintiffs, that a managing clerk of of a solicitor has power to bind his principal by a verbal agreement as to
costs, made by such clerk with a client of the principal, notwithstanding PREPARATION OF LEASES BY HOUSE AGENTS.
possesses no express authority to make any such agreement, and [To the Editor of the Solicitors' Journal.]
that such agreement is not at the time disclosed to the principal, and is
never ratified by him. Sir,-I have not hitherto seen any reference in your valuable paper to Comment is, we think, unnecessary on such a ruling, but it is to be the observations made by Mr. Justice Grove in the case of Nathan v. regretted that it cannot be brought under the notice of the Supreme Moore, brought before him on appeal in the Queen's Bench Division of the Court, to secureas, considering its origin, it presumably would—the High Court on the 14th ult. It was an action brought in the county court sanction and approval of two or more judges, and so become "a leading against an auctioneer and house agent for negligence in drawing an agree case." ment for the letting of the plaintiff's house for three years, and in delivering Meanwhile solicitors who are liable to be brought within the jurisdicjudgment for the defendant, Mr. Justice Grove made the following re- tion of the learned Commissioner will doubtless take care that their clerks markable observations: "No doubt it would have been better if he [the do not, if they can help it, make contracts with clients similar to the one house agent] had prepared a lease, but he was not to be held guilty of above mentioned. negligence because he did not do what a skilled professional person Jan. 11.
PLAINTIFFS IN PERSON. would have done. The fair question was: Did the defendant use such reasonable care and diligence as, under the circumstances, people would expect a house agent to use ? The answer to this, he thought, must be in the affirmative. To hold otherwise would be disastrous, and would result
MESSRS. WOLSTENHOLME AND TURNER'S BOOK. in house agents declining to draw agreements, which for the most part
[To the Editor of the Solicitors' Journal.] abundantly answered the purpose for which they were drawn, thereby driving the work into lawyershands at a great expense to the public."
Sir.-In looking through this work several portions struck me as reWithout regarding the latter portion of the learned judge's remarks,
quiring a little explanation.
The general forms given in the book include the ordinary covenant by and without discussing the doubtful benefit the public derive from house agents ' agreements, which lawyers are well aware form a prolifis section 7 (1.) (D.) such a covenant is implied by the use of certain words.
a mortgagor to pay rent and perform lessee's covenants, although, under source of litigation-it certainly does seem to me “passing strange" Why the covenant should be used (see the form of mortgage of leasethat the learned judge should suggest that a house agent should prepare a lease (which, by the Statute of Frauds, is required to holds, p. 164) and the covenants for title be left to implication is not
. be in writing, and by the 8 & 9 Vict. c. 106, consequently to be by deed), and thereby subject himself, as it seems to me he would be used as to both freeholds and leaseholds, and they generally adopt it
The authors remark that in future the word “convey” will probably to the penalty of £50 prescribed by section 60 of the Stamp Act, 1870 in their forms, but it would seem for no other reason than that it appears (which the learned judge appears to have overlooked)-a fact which, the case above referred to contained in Land of the 17th ult. (a paper implied by section 7, the words “ assign," "appoint,” &c., apparently after his remarks, and the prominence given thereto in the full report of in the forms contained in the schedules to the Act. The use of the
word does not appear to be necessary in order to secure the covenants which is supposed to be the special organ of auctioneers and estate being equally effective for the purpose (see section 2, V.); and the agents), it is as well those gentlemen should bear in mind. 3, South-square, Gray'a-inn, Jan. 11.
authors have, in fact, framed their form of mortgage before referred to WILLIAM GREAVES.
so as to get the benefit of the implied covenants for title by the use of the word " demise.” In other forms they use " appoint and convey" (p.
156), and" convey and dispose of (or appoint]” (p. 156). One disadvantage COMMISSIONERS FOR OATHS,
of allowing the word “convey" to take the place of “grant" or "assign" [To the Editor of the Solicitors' Journal.]
will be seen on reference to the conveyance of freeholds and leaseholds
at p. 158, where, in the recital, the freeholds are referred to as “the Sir, Among the numerous commiesioners appointed to take affidavits freehold hereditaments hereinafter mentioned and conveyed by the first there are some, I regret to say, who are quite forgetful of their own witnessing part of these presents," a style of reference which will hardly self-respect, and the duty they owe to their own professional brethren. become general. Neither this form of conveyance nor that at p. 189 I know for a fact that in this neighbourhood (and it may very likely follows very closely the language of form 3 in the 4th schedule.