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vacation judge to sit in, if it were not for the express assignment of the interval to the vacation judges hy rule 7. We presume that the question was considered before Tuesday's sitting was appointed, but we must confess that we should be glad to see all doubt removed by a " rule 8."
The Cokvetancwg Act contains a startling warning of what people may expect who rashly trust to statutory powers to bo silently implied in deeds. They may chance some day to find that the Act which confers them has been repealed without any saving of the powers of those who have trusted themselves to the tender mercies of the Legislature. Such, in the opinion of some learned persons, has been the fate of Lord Cranworth's Act: a lesson which ought not to fall unheeded. Section 71 of the Conveyancing Act provides that:—
"(1.) The enactments described in Fart III. of the Second Schedule to this Act are hereby repealed."
This Part III. of the second schedule contains parts II. and III., being sections 11—30, of Lord Cbanworth's Act; of which part II., being sections 11—24, contains provisions similar in outline to those contained in the sections of the Conveyancing Act upon which we comment elsewhere in our columns, for making powers of sale, Sec., incident to the estate of a mortgagee.
"(2.) Tbe repeal by this Act of any enactment shall not affect the validity or invalidity, or any operation, effect, or consequence of any instrument executed or made, or of anything done or suffered, before the commencement of this Act, or any action, proceeding, or thing then pending or uncompleted; and every such action, proceeding, and thing may be carried on and completed as if there bad been no such repeal in this Act, bat this provision shall not be construed as qualifying the provision of this Act relating to section forty of the Settled Estates Act, 1877, or any former Act repealed by that Act."
Upon the effect of this repeal we shall cite part of a note upon section 71 given by the authors of what, in our opinion, is the most useful commentary hitherto published upon the Act. "It seems," they say (clehke 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 statutory powers; and it does not seem possible by any construction of the section, however liberal, to continue in favour of those instruments the operation of the statute" [i e., Lord Cranworth's Act] "beyond the date of its repeal—i.e., 1st January, 1882. It must be observed that the substituted provisions in sections 19—21 of this Act" [i.e., the Conveyancing Act] "apply only where the mortgage deed is executed after the commencement of the Act." If this opinion is well grounded, the position of mortgagees who have silently relied upon Lord Cranworth's Act will be truly pitiable. We incline to think that the courts may possibly contrive to squeeze the desiderated meaning out of section 71; holding, perhaps, that an exercise of a power given by Lord Cranworth's Act after the date of its repeal is " a consequence" of the mortgage deed; though it is properly a consequence, not of the mortgage deed, but of Lord Cranworth's Act. We are almost ashamed to propose such a construction as possible; and it would be libellous to accuse anyone of having intended to effect such a purpose by such a method. The mortgagees aforesaid will, therefore, owe their safety, if they are safe, rather to the Conveyancing Act's inadvertence than to its design. And since Lord Cranworth's Act will have escaped—if, indeed, it has escaped —by the skin of its teeth, there must always be room for the fear lest the Conveyancing Act, when its turn comes, should not escape nt all.
These Are Days in which no practitioner knows what changes he may have to adopt, and we have always considered it one of the most important functions of a legal journal to advise its readers as to the mode of meeting the various difficulties which arise in the working of a new practice. We have, therefore, turned with interest to the letter which appeared in the Times a few days ago from "A Solicitor," asking for advice as to the best means of carrying out a revolution in his office. He states that he is "a solicitor in good practice, with a large stnff of clerks—all men, young or middle-aged." He has "long thought, and been convinced, that
women might be as usefully employed as men as writers, bookkeepers, and general clerks," and he carries out his conviction to the extent of occasionally employing them out of his office. He now wants to employ them in his office, but he 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. But there remain many serious considerations. "Would my clients object?" asks the solicitor. Well, we should think no general answer can be given to this query. It depends very much on the age and sex of the client. Young men clients might not only not object but approve; old men clients might raise no serious objection; but lady clients of all ages would be likely to look with suspicion on the innovation, and spinster clients of advanced age would inevitably change their solicitor. Over and above the clients there remains the question, how the innovation would be received in the home circle of the solicitor. From the fact that he "should not object" to the young lady clerks it would not necessarily follow that his female relatives would regard the proposal with approval. We presume, however, from the circumstance that the solicitor states that he "shall engage two young women as writers," and " will see what stuff they are made of," that all difficulties of this kind have been removed. There still remains, however, the question of the effect of the introduction of the "two young women" on their male co-clerks, and it is this consideration which appears mainly to harass the solicitor. He thinks that "at first, no doubt, flutter and flirtation" would be the result; but when the novelty had worn off the innovation would, "he feels sure, work satisfactorily." Wc cannot say we feel so sure. Here again the question depends, to a large extent, on the characteristics of the subjects of the solicitor's experiment. We should think that if he means to have any work done in his office he must either restrict his male clerks to persons of mature age, or take care that his "two young women" are distinguished by an appalling lack of personal charms.
WHAT SHOULD BE THE FORM OF
This question is asked on all hands now that the Conveyancing Act, 1881, has come into operation, and we shall attempt to give an answer to it.
We may assume in the first place, with Mr. Prideaux, that the statutory form of mortgage given in the third schedule of the Act " will not be generally adopted." The principal draftsman of the Act has himself stated in his book (p. 58) that the forms in this schedule "will probably only be used in quite simple cases, and for loans on small properties." As doubt as to the efficacy of auy part of the Act is certainly not a prominent characteristic of the work in which this remark occurs, we may conclude that the framer of the form in question has no great confidence in its completeness or safety. It is not difficult to show that there nre reasons for this distrust. First of all, there are some questions upon the construction of the provisions of the Act relating to the statutory form. Section 26 provides a form of covenant for payment of the mortgage money and a proviso for redemption, and enacts that "the provisions of this section shall apply" to the form of statutory mortgage in the third schedule; but it omits to enact that the provisions of sections 19—24, by which are implied numerous powers, shall also apply to that form. If it is suggested that they must do so, since a 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 equally a mortgage made by deed, yet it has been considered necessary to provide, by section 57, that "deeds in the form of, and using the expressions in, the forms" in the fourth schedule "shall, as regards form and expression in relation to the provisions of this Act, be sufficient." Again, under section 26 only such variations and additions can be made to the statutory form "as circumstances may require "—a provision which docs not obviously authorize the insertion of any variations or additions which may be agreed upon by the parties. We do not attach much importance to these doubts, but there is no reason why a mortgagee should run the risk of any doubt, however slight it may be, as to the operation and efficacy of his security. There are other reasons why this statutory form should not be used. It is expressly confined to mortgages of land, and will not apply to mortgages of land and personalty, so far at least as regards the personal property therein comprised; and the use of the words " by way of statutory mortgage" is essential to its validity; moreover, additional provisions which may be necessary cannot very conveniently be added. Thus a proviso for reducing the rate of interest on punctual payment cannot be conveniently inserted in a form of mortgage which contains no express covenant for payment of interest.
We think, therefore, that the form contained in the fourth schedule of the Act is more likely to be adopted than the form of statutory mortgage contained in the third schedule. Upon the form in the fourth schedule, the first thing to be observed is that no peculiar authority or efficacy is given to it by the Act. Section 57 provides that "deeds in the form of, and using the expressions in, the forms given in the fourth schedule to Act, or in the like form, or using expressions to the like effect, shall, as regards form arc! expression in relation to the provisions of this Act, be sufficient." That is to say, if a mortgage is in this form it will avail to give the parties the benefit of all the powers and provisions to be implied under the Act, So will also any "mortgage made by deed." It is not to be assumed that this section makes the forms in the fourth schedule sufficient for all purposes. Nor will section 66 avail to protect the solicitor using them, except as regards liability for not negativing the implied powers and covenants given by the Act. The forms in the fourth schedule, in fact, have, we conceive, just the same authority as ordinary forms framed by Mr. Wolstenholme would have, and no more. There is, therefore, no reason why the phraseology of these forms should not be varied where it appears to be less appropriate than that hitherto employed. And it is to be observed that Mr. Wolstenholme, in constructing the "forms in mortgage deeds" in chapter 3, section 1, of Part II. of his book —which, of course, are intended to be used in connection with the forms in schedule 4—has not adhered to the phraseology of the forms in the Act. Thus, in the covenant for fire insurance, at p. 128, he always inserts the words "the said" before the names of the parties, in place of the severe "A." of the form in the schedule. He says in the covenant, "so long as any money remains due under these presents," while the form in the schedule says, "as long after that day as any principal money remains due under this mortgage," and so forth. On all these verbal matters we think that Mr. Wolstenholme's second thoughts are better than his first, and ought to be adopted throughout the form, otherwise the mortgage will present an instance of the gravest vice in conveyancing—the use of different expressions to signify the same thing in different parts of the same deed. Before leaving this form of covenant to keep up fire insurance given by Mr. Wolstenholme, may we be permitted to ask why he considers it necessary to add a provision enabling the mortgagee to insure in default of the mortgagor? Can he have forgotten that, by sections 19 (ii.) and 23, such a power is to be implied in all mortgages made by deed?
If we are right in supposing that the phraseology of the form in the fourth section may be varied—and we have the further authority of Messrs. Pridenux and Whitcombe for this view—(see Precedents, vol. 1, p. 503, note b.)—then we agree with those learned authors in thinking that there is no reason why, in the proviso for redemption, the words "the persons claiming under him," which occur four times, should be adopted in preference to the shorter expressions hitherto in use. There is no possible need for the words, "subject to the proviso for redemption following (namely)," and as regards brevity, the form of proviso adopted by the learned authors last mentioned—"Provided always that if
the said sum of £ , with interest thereon, shall be paid on
the said day of next, according to the foregoing
covenant in that behalf, the said premises shall, at the request and cost of the said A. B., his heirs or assigns, be rc-conveyed to him or them "—has the advantage of expressing in about fifty words (exclusive of names) what the form in the fourth schedule takes (without counting names), over eighty words to express. The next and, perhaps, the most important question, is whether
the implied powers and provisions of the Act relating to mortgages should be allowed to come into operation; and in order to arrive at an answer to this question, it is necessary to consider the parts of the Act relating to this matter. First of all, as to leases, section 18, by the first sub-section, gives (in the absence of a ** contrary intention ") a power of leasing to every mortgagor of land while in possession. We must leave our readers themselves to consult section 18 for the details of the kinds of leases thereby authorized, with which we find no great fault. They seem to accord very well with the usual practice, so far as the practice (which is by no means common) of inserting powers of leasing in mortgages exists. Then the section enacts (sub-section 8) that a counterpart of the lease shall be executed by the lessee and delivered to the lessor; and (sub-section It) that in the case of a lease made by a mortgagor, he shall deliver to the mortgagee first in priority a counterpart duly executed by the lessee. But in its anxiety to protect the interests of the lessee, sub-section (11) proceeds to enact that he shall not be concerned to see that the lastmentioned provision is complied with. And sub-section (8) provides that the execution of the lease shall, in favour of the lessee and persons deriving title under him, be sufficient evidence of the execution and delivery to the lessor of the counterpart. And as though this were not enough, we find at the conclusion of the section the following extraordinary provision :—
"(17). The provisions of this section referring to a leise shall be construed to extend and apply, as far Kb circumstances admit, to any letting, and to an agreement, whether in writing or not, for leasing or letting."
We shall make no attempt to predict the meaning which will ultimately be affixed by the courts to language of such tremendous latitude. We find in it nothing, so far as it contemplates parol leases and agreements for leases, to limit these within the requirements of the Statute of Frauds. The same degree of uncertainty must also exist whether the leases, other than parol leases, which this sub-section contemplates, are within the 8 8c 9 Vict. c. 106, s. 3; and it is a noteworthy fact that this lastcited enactment made express reference to the existing law touching written and parol leases. Moreover, the words of the sub-section under consideration, if taken in their literal meaning, seem to authorize a neglect of the protective restrictions, as to number of years, rent, &c, previously laid down.
So far we have been speaking from the point of view of the mortgagee. The section also contains some provisions which are not unlikely to circumscribe a good deal its practical utility from the point of view of the mortgagor.
"(13.) This section applies only if and as far as a contrary intention is not expressed by the mortgagor and mortgagee in the mortgage deed, or otherwite in writing, and shall have effect subject to the terms of the mortgage deed or
of any such writing, and to the provisions therein contained."
From this it seems to follow that an intending lessee could not safely deal with a mortgagor as lessor, without satisfying himself, not only as to the contents of the mortgage deed, but also as to the contents of every writing, if any, executed by the parties and bearing upon the matter in hand: an evidently impossible undertaking. Such writings would, of course, be in the custody of the mortgagee, and the mortgagor would have no visible motive for incurring the expense of a duplicate. It would be necessary to inspect the writings answering to this description in the custody of each of the mortgagees, if more than one; for though it does not clearly appear from the section what effect such a writing if executed only by one mortgagee would have upon the rights of another, it seems to be clear that such a writing would, as against the mortgagor and his lessee, preserve the rights of the mortgagee who had executed it.
If a lease purporting to be made under this section by a mortgagor should be void by reason of any defect In the execution of the power (such as the concealed existence of any such writing as in the last paragraph mentioned), we may doubt whether the lessee would not be in a worse position than he would have been in if his lease had been made by the mortgagor's own sole authority under the existing law. We will waive the question, whether a lease purporting to be made by an invalid execution of a power, creates an estate by estoppel; because we refer more particularly to the more important right of redemption. Under the existing law a lease made by the mortgagor on his own sole authority is voidable by the mortgagee; but (though the question has never been actually decided) it is the better opinion that the lessee would have a right to redeem. A doubt may be felt whether a void lease purporting to be made under this section would confer any such right.
Lastly, we find something very mysterious in the following sub-section:—
"(12.) A contract to make or accept a lease under this section maybe enforced by or against every person on wlwm the lease, if granted, would be binding."
A lease granted under the section by the mortgagor would be binding on the mortgagee: could an intending lessee enforce against the mortgagee specific performance of a contract to grant a lease entered into by the mortgagor? This would be a grotesque conclusion; but it seems to be plainly within the language of the Act; and it operates no manifest absurdity, for the mortgagee is under the section quite competent to give effect to the contract. We are not a little curious to know whether such contracts could be enforced by summons at chambers: see section 69, sub-section (3).
We do not propose to examine in detail the remaining sections relating to implied forms in mortgages—namely, sections 19—24; which refer only to powers conferred upon the mortagee :—(1) To sell; (2) to insure against fire; (3) to appoint a receiver; and (4) to cut and sell ripe timber, while in possession. These powers seem to be sufficiently beneficial to the mortgagee; enabling him in some respects to deal more harshly with the mortgagor than is allowed by the common practice, and in no respect (that we are aware of) relaxing the present practice to the benefit of the mortgagor. It is, therefore, not improbable that mortgagees will retain and use them, unless a sufficient obstacle is interposed by the resistance of mortgagors.
On the whole, therefore, we conclude that a mortgagee may safely allow the implied powers given by the Act to come into operation, with the exception of the power of leasing (section 18), which, in our opinion, ought to be always expressly excluded. Another part of the Act which it is very desirable to exclude is section 5, which enables a mortgagee to be redeemed behind his back, and may, as we have shown in a previous article, operate so as to defeat his right to consolidation. There is no provision that this section shall apply only so far as a contrary intention is not expressed, but there is also no provision that it shall " have effect, notwithstanding any stipulation to the contrary," which leaves ground for a hope that it may be negatived. We think, at all events, that the attempt is worth making. Section 17, relating to consolidation of mortgages, can undoubtedly (and probably always will) be excluded.
BANKRUPTCY LAW REFORM.
Clause 33 of the Government Bill relates to the examination of bankrupts, and is as follows:—
"Clause 33.—(1.) Where a debtor has been adjudicated bankrupt, the court shall hold a pnblio Bitting on a day to be appointed by the court, for the examination of the bankrupt, and the bankrupt shall attend thereat and shall be examined as to his conduct, dealing', and property.
"(2.) The court may adjourn the examination from time to time.
"(3.) The bankrupt shall not be deemed to have passed bis pnblio examination until the court by order declares that his affairs hare been sufficiently investigated, and that his examination is finished.
"(4.) Sections 96, 97, and 98 of the principal Aot (relating to discovery of bankrupt's property) shall have effect as if the term 'trustee' inolnded the official receiver."
We presume it is not intended that the public examination shall be appointed until the first meeting has been held and a trustee appointed. That is the present practice, and it would be a great mistaKe to alter it. But from this clause, as drawn, it would Appear that the sittiug for public examination is to be appointed as soon as au order of adjudication is made! Then, again, we would ask, by whom is the examination to be conducted p Suppose the trustee and creditors should be satisfied with a certain investigation, is it intended by sub-clause 3 that the court shall have power, notwithstanding their being so satisfied, to continue the investigation P And is it intended by sub-clause 4 that the official receiver, whether acting as trustee or not, shall have the same powers as a trustee to examine a bankrupt, &c.? If these be the intentions of the section, we do not think they will come to much in the end, judging
from experience of the way in which official assignees performed that duty under the Act of 1861. The official receivers may sweep like " new brooms" to begin with, but we anticipate that they will soon get tired of that, and not interfere with the investigations of the creditors' representatives or seek to carry them any further, unless urged to do so by independent creditors. True it is that it is provided by clause 46, subclause (jr.), that it shall be part of the duties of an official receiver " to take such part as may be directed by the Board of Trade in the public examination of the bankrupt"; but we do not think that will make much difference, as we apprehend the Board of Trade will have to rely upon the official receivers for information as to the fact of every bankruptcy, and will practically only be able to give such directions as may be suggested by them.
Clause 34 provides for the close of the bankruptcy by an order of the court when a composition or scheme of arrangement has been approved, "or the trustee reports to the court that the whole property of the bankrupt has been realized for the benefit of his creditors, or so much thereof as can, in the opinion of the trustee, be realized without needlessly protracting the bankruptcy," and for notice thereof to be published in the Gazette. Section 47 of the Act of 1869 requires "the joint opinion of the trustee and committee of inspection" that oil the property has been realized which can be realized without needlessly protracting the baukruptcy. We think their approval in such a case ought to be obtained, or they should be cited to show cause why such an order should not be made.
The next clause (35) relates to the discharge of bankrupts. It provides that (1) when a bankrupt has passed his public examination he may apply to the court for his discharge, and the court may appoint a day to hear same. (2) If the application be made during the continuance of the 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 trustee that the bankrupt has duly surrendered bis property, and that in the opinion of the trustee there is no further occasion for the bankrupt's services in the bankruptcy." (3) On the application the court is to consider a report of the official receiver on the bankrupt's conduct and affairs, and may either grant an absolute discharge, or, on proof of any of the facts therein mentioned, refuse the order or suspend its operation for a time, or grant it subject to conditions with respect to the bankrupt's future earnings, or income, or after-acquired property (4) The facts before referred to are (a) that the estate has not and will, not realize a sum equal to one-half the proveable debts, and that such insufficiency has not been caused by the negligence or fraud of the trustee; (i) that the bankrupt, if a trader, has omitted to keep proper books of account during the three years immediately preceding1 his bankruptcy, or has omitted during such period to prepare onoe a year a proper balance-sheet of his affairs, or has greatly increased his liabilities by carrying on trade at a loss while insolvent, or has contracted debts without "reasonable or probable ground of expectation, (proof whereof shall lie on him) of being able to pay them "; (c) whether a trader or not if he " has brought on his bankruptcy by rash and hazardous speculations or unjustifiable extravagance in living, or has put any of his creditors 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 (0!) that he has within four months of adjudication given a fraudulent preference to any of his creditors. (5) Notioe of the day appointed is to be published and sent 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 court seven days' notice of his desire to oppose; and (6) the court may, as a condition of the disoharge, require the bankrupt to consent to judgment being entered against him by the official receiver or trustee for any balance of the debts proveable not satisfied at the date of the discharge; but execution on such judgment not to be issued without leave of the court, " which leave may be given on proof that the bankrupt has since his discharge acquired property available for payment of his debts."
We think that this clause will be a great improvement upon the present law as to bankrupts' discharges. Whilst, however, approving generally of the proposal, there are several points of detail in the clause which, in our opinion, ought to be more fully considered, and to which we desire to call attention. Iu sub-olause 2 we think that the assent of such a large majority of creditors might be dispensed with in case of an application during the continuance of a bankruptcy. We cannot see that the question of the bankrupt's discharge can, in any way, affect the realization of the estate, and it often happens, particularly in estates of magnitude, that a bankruptcy cannot be closed for years, owiug to complications of various kinds. We suggest that iu order to meet such cases, it might be provided that the assent of the creditors, &c, should not be required in case of an application made after the expiration of, Bay, twelve months from adjudication, even if the bankruptcy be not then closed.
With regard to sub-clause 3 we have already given expression to our views as to the value of official receivers' investigations in our remarks on clause 33, and those remarks apply equally to this sub-clause. But the 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 in the Goyernment proposals we presume that this part of the sub-clause will be adhered to.
Sub-clause 4 ought to be carefully sifted and examined—(a.) This, we think very proper, and a most sensible improvement upon the present law as to payment of ten shillings in the pound. (6.) The omission to keep proper books of account and make out balance-sheets, seems to be taking a leaf out of the bankruptcy laws of some of the continental nations. The Act of 1861 provided that if a bankrupt trader "with intent to conceal the true state of his affairs, wilfully omitted to keep proper books of account," the court might refuse or suspend his discharge, but that was obviously a long way short of the present proposal. The proposal will operate rather hardly upon illiterate traders, but no doubt the Government anticipate that, by reason of the Acts for compulsory education, these will become extinct in a little time. When that time arrives the proposal will, we think, be a highly proper one, but the illiterate trader is not quite extinct yet. (c.) This is following provisions in section 159 of the Act of 1861. With regard to the "vexatious defence " provision, that was a very proper one when that Act was passed, but appears to us unnecessary with the provisions of order 14 under the Judicature Acts in force, (d.) This provision is new, and, we think, highly proper.
Sub-clause 6 we are inclined to think goes somewhat too far. But iu any event we suggest that in the concluding sentence the words " shall only" should be substituted for the word "may," and the following words added at the end :—" And on notice of the application for such leave being served upon the bankrupt in the prescribed manner."
We think also that some provision should be made as to the discharge of bankrupts and liquidating debtors under the present Act. There are cases where bankrupts and liquidating debtors are refused their discharge 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 of the law as to discharge it should not be made to apply to them.
Clause 36, eub-clause 1, gives the court power to annul adjudication in the following cases :—
"(a.) Where in the opinion of the court an order of adjudication ought not to have been made, or
"(*.) Where it is proved to the satisfaction of the court that the debts of the bankrupt are fully paid or satisfied, or
"(c.) Where a bankruptcy is closed, eithe. n oonsequence of approval of a composition, or scheme, or otherwise, and the bankrupt has passed his public examination, and the court, after takiDg into consideration the report of the official receiver, is satisfied that the bankruptcy has been oaused 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 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 that none of the facts mentioned in section 35, sub-section 4, of this Act have taken place."
Clauses 37 to 39 relate to the disqualification of bankrupts to sit in Parliament or hold any public office, but that is a question which does not come within the scope of these papers, and we do not presume to discuss it here.
Clauses 40 to 42 deal with the punishment of fraudulent bankrupts. Ckuse 40 extends the provisions of the Debtors Act, 1869, to debtors petitioning for adjudication. This is, of course, necessary iu consequence of the proposal to allow debtors to file their own petitions for adjudication and to abolish liquidation proceedings. Clause 41 extends section 16 of the same Act, so that the term " a trustee in any bankruptcy" shall include an official receiver. We presume it is the intention to give the official receiver power under that section whether he is also acting as trustee or not, but we think official receivers will be very diffident in acting unless set in motion by creditors. Clause 42 is as follows :—
"42.—Where there is, in the opinion of the court, ground to believe that the bankrupt has been guilty of any offence which is by statute made a misdemeanor in cases of bankruptcy, the court may commit the bankrupt for trial, and shall have all powers and jurisdiction requisite for that purpose."
A similar power was given to the Commissioners in Bankruptcy under eection 222 of the Act of 1861, but we believe it was seldom, if ever, exercised. We remember that when applications under that section were made to one of the country commissioners of note he invariably declined to exercise the jurisdiction, stating that the power was an optional one and be would not interfere with the jurisdiction of the magistrates, as he considered that magistrates were better able to deal with all criminal offences whether under that Act or not, although he frequently made orders for creditors' assignees to prosecute. Now we think either the courts should be compelled to exercise the jurisdiction instead of having to go before tbe magistrates, or else the clause should be omitted altogether. If the clause be passed as drawn, we shall have a great variety of practice in the different courts, but, eventually, we anticipate the courts will generally decline to act upon the section, as was the case under the Act of 1861.
The administration of small bankruptcies with a view to saving the Terr disproportionate amount of costs, to which, under the present system
they are liable, is dealt with by the next clause, No. 43. It provides as follows:—
"Clause 43.—Where it appears to the official receiver, from the bankrupt's statement of affairs or otherwise, that the bankrupt's estate is not likely to exceed three hundred pound; the administration of the estate shall be subject to the following provisions.
"(1.) The official receiver shall, as from the date of the first meeting of creditors, become and be deemed to have been appointed by the Board of Trade the trustee of the estate, unless the creditors at that or any subsequent meeting, by tbe resolution of a majority in number and valne of the creditors present personally or by proxy at the meeting, and voting on the resolution, resolve that some other person be appointed trustee.
"(2.) Unless another person is appointed trustee, the official receiver shall have power to accept a composition on behalf of tbe creditors, and any composition so accepted shall have the same effect as if it had been duly accepted in pursuance of resolutions of the creditors.
"(3.) Unless a composition is accepted or another person is appointed trustee, the official receiver sball proceed to get in, realize, and distribute the estate of the bankrupt with all possible dispatch, and shall not be required to summon any meeting of the creditors after the first meetingunless, in the opinion of the court, it is expedient that such a meeting be summoned."
Sub-clause 1.—The proposal contained in this sub-clause does not, we think, amount to very mush. We take it that under clause 20, sub-clause 10, the official reoeiver would, failing the appointment of any other trustee by the creditors, be the trustee in the case of any bankruptcy, whatever the amount of the assets. The only difference is that, in order to oust him from that position in cases within this clause, it would require a majority in number as well as value of the creditors at a meeting, aud under clause 20, sub-clause 9, the creditors are given power to leave the appointment of a trustee to the committee of inspection, which is omitted from this clause. But these will not practically make muoh difference. There may of course be cases of very large cash creditors constituting the majority in value of the creditors, and a number of trade creditors constituting the minority iu value, but majority in number, where the proposal would act beneficially, but such cases we think will be comparatively few.
Sub-clause 2.—We Btrongly object to this absolute power being given to the official receiver. It ought, in our opinion, to be subject to acceptance by a special resolution of the creditors. This would not involve much additional expense, and would be much more satisfactory.
Sub-clause 3.—We would suggest the addition at the end of the words "or unless requested in writing to do so by one-fourth in value of the creditors."
[To the Editor of the Solicitors' Journal.']
Sir,—If I venture to aak again for a place in your columns it is not so much in order to propound opinions of my own as to aid in stirring up interest in the forthcoming deliberations of our society. I think most working solicitors will agree on these two points—that dispatch means (in most cases) saving of money, and that the suitors have a right to the services of an efficient and sufficient staff in every department of the court.
It is now many years ago that, at a meeting of the Law Amendment Society, I heard the late Mr. Field insist, with his accustomed vigour, on the first of these points, apropos of his favourite topic, the conoentration of the courts and offices; and the impression I then received has been deepened by all subsequent observation. For example, it must be a familiar experience to all solicitors of mature years how difficult it is to get a litigaut to consent to any compromise till the crisis is actually at haud. Terms are often arranged on the very eve, or perhaps on the very morning, of the impending fray. Any needless delay in reaching this point means money thrown away, and very likely irritation aggravated, or created, to form an additional obstacle to any settlement. That suitors should be forced to a compromise by pressure from the court, whose duty it is to determine their dispute, is, generally speaking, improper and unrighteous, but that is quite another matter from such settlements as I now refer to. If, on the other hand, the parties are determined to go into court, they are entitled to have their cause adjudged with expedition, but not with hurry. It is so easy to lay all blame on the solicitor, and that patient drudge is so accustomed to the lash, that it may not be surprising to find the facts of the case, which are plain enough to him, ignored by those in high places. To him it is not surprising, quite apart from questions of "costs," that the Chancery Division should be preferred in many cases. Everything is not perfect there by any means, but it is notorious that business moves quicker in all that concerns pro. oeedings in court. I admit that the business of the Queen's Bench Division is more multifarious, and more disturbed by circuits, but these admissions do not dispose of the question.
The inconveniences complained of may bo lessened by biinging the courts and their frequenters locally together, but not removed. Probably the abolition of sittings in Bane would do a good deal to remove the cause of them. Under present arrangements, you are informed, for example, that demurrers will be taken on such a day, and you arrange and inform clients accordingly. When that day's list comes out, demurrers are "conspicuous by their absence," and this may occur more than once. Solicitors, counsel, and suitors who desire to attend the hearing of their causes all alike flounder in uncertainty and confusion; and the case is aggravated when country clients are in it.
Nobody wishes to suppose—no one does in fact suppose—that the judges are indifferent to the convenience of the public, lay or professional. The system is bad, and should be altered, and if the staff is inadequate, it should be increased. Whether citizens may claim to have their rights ascertained at the public cost, or no, is a question we need not discuss. In this country litigants contribute so very largely to the cost that they aTe tntitled to be properly attended to.
But then we are told that the appetite of solicitors for costs has increased, is increasing, and aught to be diminished; and a limit of £200 is suggested, below which a lower Bcale than the present (frequently inadequate) remuneration is recommended.
Here may be remarked a want of acquaintance with the facts of daily business, in which we find that more difficulties are apt to occur in the conduct of cases involving from £50 to £200 than in heavier cases. Iu asserting this I rely on better authority than my own—that of an ablo 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 consequently with less risk of '* muddle." The theory set forth in the report of the Legal Procedure Committee, that litigants, particularly in the (mallei class of cases, know what they mean to go for, and are only confused by the lawyers, is "quite too-too." But it is only one of several proofs to be found in the report, that men, however able and eminent, are not, therefore, qualified to deal practically with matters with which they are not conversant. True, the judges and barristers on the committee had the assistance of two solicitors, but these gentlemen probably know nothing, and care as little, about actions under £200. On this subject who would value the opinion of Mr. Farrer or Mr. Freshfield?
The committee now sitting includes, as it ought to include, solicitors of that class, but does not consist of them; and many of us are hoping for practical treatment of some of these questions. X.
PREPARATION OF LEASES BY HOUSE AGENTS.
Sir,—I have not hitherto seen any reference in your valuable paper to the observations made by Mr. Justice Grove in the case of Nathan v. Moore, brought before him on appeal in the Queen's Bench Division of the High Court on the 14th ult. It was an action brought in the county court against an auctioneer and house agent for negligence in drawing an agreement for the letting of the plaintiff's house for three years, and in delivering judgment for the defendant, Mr. Justice Grove made the following remarkable observations: "No doubt it would have been better if he [the house agent] had prepared a hate, but he was not to be held guilty of negligence because he did not do what a skilled professional 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 P The answer to this, he thought, must be in the affiimative. To hold otherwise would be disastrous, and would result in house agents declining to draw agreements, which for the most part abundantly answered the purpose for which they were drawn, thereby driving the work into lawyers' hands at a great expense to the public."
Without regarding the latter portion of the learned judge's remarks, and without discussing the doubtful benefit the public derive from house agents' agreements—which lawyers are well aware form a prolific source of litigation—it certainly does seem to me "passing strange that the learned judge should suggest that a house agent should prepare a lease (which, by the Statute of Frauds, is required to be in writing, and by the 8 & 9 Yict. c. 106, consequently to be by deed), and thereby subject himself, as it seems to me he would, to the penalty of £50 prescribed by section 60 of the Stamp Act, 1870 (which the learned judge appears to have overlooked)—a fact which, alter his remarks, and the prominence given thereto in the full report of the case above referred to contained in Land of the 17th ult. (a paper which is supposed to be the special organ of auctioneers and estate agents), it is as well those gentlemen should bear in mind. 3, South-square, Gray's-inn, Jan. 11. William Greaves.
COMMISSIONERS FOR OATHS.
[To the Editor of the Solicitor!' Journal,']
Sir,—Among the numerous commietioners appointed to take affidavits there are some, I regret to say, who are quite forgetful of their own self-respect, and the duty they owe to their own professional brethren. I know for a fact that in this neighbourhood (and it may very likaly
be in other legal localities) there are commissioners who make it a practice to tout the clerks of solicitors for taking affidavits to be used in their employers' service, and allow such clerks a commission of one-half or onethird of the fees payable to the commissioner. There is one person (I cannot refer to him as a gentleman) who, in particular in this part of London, now derives a considerable income from this sort of work. In my opinion there are, amongst many others, two strong objections to be urged against this practice. The first is, that it holds out to solicitors' clerks an inducement to dishonesty; for if a commission is to be allowed at all it should go into the pocket of the clerk's principal; and, secondly, it is a practice which is unfair to those commissioners—a large majority I believe—who are anxious to act uprightly, and to preserve the honour of their appointment and the well-being of the profession to which they belong. The matter is so notorious that I am surprised attention has not been called to it before, and I hope if you favour me by inserting this letter something may be suggested to abate the evil. I should say that a letter addressed under the authority of the Council of the Incorporated Law Society, and sent to every member of the profession, requesting that a more oareful personal supervision may be exercised by principals over their clerks in relation to the taking of affidavits, would have a very beneficial effect.
Gray's-inn, Jan. 10. A Commissioner To Administer Oaths.
AN UNREPORTED DECISION.
Sir,—We conceive that it is always a loss, and something of a danger to the profession at large when any decision of one of the more distinguished judges fails to attain the useful publicity of the reports.
That this may not be so in the case to which we desire to call the attention of your readers, is the object of this letter. Our anxiety is the greater as the decision in question is not liable to review, and we venture to say that it nearly affects our brother solicitors, who may at any moment find themselves brought within the scope of its ruling.
Shortly, then, the learned Commissioner who presides over the City of London Court, and to whose judgments and remarks on men and things you have from time to time had occasion to draw attention, decided a few 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 that he possesses no express authority to make any such agreement, and that suoh agreement is not at the time disclosed to the principal, and is never ratified by him.
Comment is, we think, unnecessary on such a ruling, but it is to be regretted that it cannot be brought under the notice of the Supreme Court, to secure—as, considering its origin, it presumably would—the sanction and approval of two or more j udges, and so become " a leading case."
Meanwhile solicitors who are liable to be brought within the jurisdiction of the learned Commissioner will doubtless take care that their clerks do not, if they can help it, make contracts with clients similar to the one above mentioned.
Jan. 11. Plaintiffs In Person.
MESSRS. WOLSTENHOLME AND TURNER'S BOOK.
[To the Editor of the Solicitors' Journal,]
Sir,—In looking through this work several portions struck me as requiring a little explanation.
The general forms given in the book include the ordinary covenant by a mortgagor to pay rent and perform lessee's covenants, although, under section 7(1.) (D.) such a covenant is implied by the use of certain words. Why the covenant should be used (see the form of mortgage of leaseholds, p. 164) and the covenants for title be left to implication is not clear.
The authors remark that in future the word "convey" will probably be used as to both freeholds and leaseholds, and they generally adopt it in their forms, but it would seem for no other reason than that it appears 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 implied by section 7, the words "assign," "appoint," &c, apparently being equally effective for the purpose (Bee section 2, V.); and the authors have, in fact, framed their form of mortgage before referred to 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 oonvey" (p. 156), and" convey anddisposeof [or appoint]" (p. 156). One disadvantage of allowing the word " convey " to take the place of " grant" or " assign" 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 freehold hereditaments hereinafter mentioned and conveyed by the first witnessing part of these presents," a style of reference which will hardly become general. Neither this form of conveyance nor that at p. 189 follows very closely the language of form 3 in the 4th schedule.