Page images

Clauses 55 and 56 relate to "fees, salaries, expenditure," but those upon a petition filed by a creditor before death on proof of the insol. being matters more political than practical, we do not presume to vency of the deceased, and the creditor should not in that case be comment upon them.

compelled to file a fresh petition to enable him to proceed under subWe have now arrived at a number of most important provisions clause 1. which are contained in clauses 57 to 67, under the general head of Sub-clause 5.- No limit of time after death is provided by this sub“Supplemental.” Th administration in bankruptcy of the estates of clause. This we think right, but it ought to be consistent with subdeceased persons is dealt with by clause 57, which is as follows :- clause 2. If the two sub-clauses are not made consistent, it will be

“Clause 57.-(1.) Where the estate of a deceased person is insufficient for possible to evade the operation of sub-clause 2, as to the six months' the payment of his debts, he shall be deemed to have committed an act of time, by first taking proceedings in the High Court for the administration bankruptoy at the time of his decease, and the court may, on the petition of an estate, and then applying for an order under this sub-clause. either of a creditor of his estate or of his legal personal representative, Why should this additional expense be required to be incurred in order make an order in bankraptoy for the administration of his estate ag he to effect the same result ! had been adjudged bankrupt immediately before his death.

(2.) The petition must be presented within six months after the death, and if it is presented by a creditor, as such, the debt due to the creditor must be a liquidated sum due and payable, and if he is a secured creditor the same rules shall apply as in the case of a living bankrupt.

REVIEWS. “ (3.) If tbe petition is presented by any person other than the legal personal representative of the deceased, the legal personal representative

SALE OF GOODS. may, if he thinks fit, appear and oppose the petition.

"(4.) Where a debtor who has been adjudicated bankrupt dies before the The Law RELATING TO THE SALE OF GOODS AND COMMERCIAL AGENCY. By olose of the bankruptoy, the proceedings shall, without any special order, Robert CAMPBELL, Barrister-at-Law and Advocate. Stevens & Haynes. be continued notwithstanding the death. (5.) Where proceedings are taken in the High Court of Justice for the

The subject of this useful and practically constructed treatise has for administration of the estate of a deceased person, the jadge before whom

many years been growing, and still continues to grow, in importance ; the proceedings are pending may, on the appligation of a creditor or of the while the subjects which engrossed the whole faculties of Fearne and legal personal representative of the deceased, and on proof to the satis

Butler have been proportionately dwindling. The circumstances under faction of the judge that the estate is not likely to be sufficient to pay its which its progress has been made sufficiently account for its want of debts, transfer the proceedings to the jadge exercising jurisdiction in that fascinating subtlety and completeness which are the characteristics bankraptoy, and thereupon, subjeot to prescribed rules, the court may make of English real property law. It is apt at first sight to present itself an order in bankruptoy for the administration of the estate as if the under the aspect of a wilderness of examples which are not easily deceased person had been adjadged bankrupt immediately before his arranged under any common principles. This state of the facts has a death."

natural tendency to re-act upon the writers of text-books, and so to This introduces a new principle in bankruptcy law, but one which has perpetuate the evil. Mr. Campbell, who acknowledges his obligations to been advocated in such influential quarters that it may be well to try the the works of Lord Blackburn and Mr. Benjamin, seems to be well experiment. For our own part, we do not think that it can result in any qualified to continue the good work of introducing greater harmony and greater dissatisfaction than the present costly proceedings for adminis- symmetry into this branch of the law. We observe that he sometimes tration of insolvent estates of deceased persons. But as it is an experi- uses his knowledge of other systems of jurisprudence-Roman, Scotch, ment, we should prefer to limit the proposal for the present to the estates

and French-to increase the breadth and perspicuity of his analysis : an of insolvent deceased traders. This, we think, would meet all present experiment which is not without some practical peril, but which is here demands, and would not be so liable to create hardship in trying the tried with judgment and not without success. experiment. Several doubts, however, occur to us upon the clause as

Most readers would turn in a book of this sort to its treatment of the drawn, upon which we will remark under the different sub-clauses.

much-vexed 17th section of the Statute of Frauds, in order to obtain Sub.clause 1.- How and when, we would ask, is it to be ascertained

a test specimen of its quality. We accordingly turned to Part IV. whether the estate of a deceased person is insolvent? In making the cal. (pp. 157—224), and were well satisfied with Mr. Campbell's arrangement culation is any provision to be made for costs ? Or, if the estate shows

and commentary. We cannot quite sympathize with those impulsive just sufficient on paper to pay all the liabilities without costs of adminis. persons (although the late Lord Chief Justice is said to have lent to tration, is it to be deemed solvent or otherwise ? These are points which their opinion the weight of his authority) who think that the repeal might give rise to considerable litigation if not more specifically provided is much significance in the fact that Mr. Campbell has found himself

en bloc of the Statute of Frauds would be a public benefit. But there for. We suggest that it might properly be provided that an estate unable to treat the cases arising upɔn one of its sections in less than should be considered insolvent on the petition of any creditor whose debt should not have been paid within

sixty-seven pages : a certain time after it

proof, if the tradition of its authorship is well had become due, and within a

grounded, that eminent judicial capacity is no test of a legislator. We

certain time after his having think that these pages are a favourable specimen of the arrangement and demanded payment thereof in some prescribed manner from the legal elucidation of an obscure and perplexed body of decisions. The importpersonal representatives of the deceased. Then, what would be the effect of an order for administration in bankruptcy upon goods of ant subject of stoppage in transitu (pp. 333–375) seems to be very another person in the order and disposition of the deceased at the date of well treated. It is remarkable that this branch of the subject should bis death, but taken out of such order and disposition immediately statute, though the difficulties of the former are inherent in its nature,

have required fewer pages than the discussion of the section of the afterwards ? Also with regard to fraudulent preferences made by the while those of the latter are chiefly due to careless legislation : a warning deceased to any of his creditors ? And to when would the trustee's which might carry a useful lesson even to these times. As an example of title relate back? Suppose an order for administration in bankruptcy Mr. Campbell's freedom and acuteness, we will refer to his ingenious were made six months after death, would it take effect as of the date emendation (p. 349) of the obscure and very doubtful case of Vertue v. thereof? or would it take effect as from “ immediately before his death,” Jewel (4 Camp. 31). so that the trustee's title might relate back to any act of bankruptcy committed within twelve months of the death ? Again, we presume that

We observe that Mr. Campbell has not invariably been careful to carry a meeting of creditors would have to be held for the appointment of a

his researches into the cases down to the very moment of publication. trustee, &c. ; but the clause is silent as to this. It is obvious that all

His preface is dated in last October; and though Crawcour v. Salter was the provisions relating to an ordinary bankruptcy would not be applic, reported in the “Cases of the Week” of the Solicitors' JOURNAL for

not published in the Law Reports until November, its main features were the statement of affairs to be filed by him. Some specific provision May 14 lasi, p. 525. We do not much sympathize with the views which ought therefore to be made to meet such cases, and also for the purpose well or ill digested, according to the talents of the speaker--to the exclu.

would turn the arguments of counsel into a mere catalogue of cases — of requiring any person who may have interraeddled with the deceased's estate to render accounts in respect thereof. The clause, as drawn, is

sion of broad principles. But we fear that readers of text-books are altogether silent on these points, and the whole subject has evidently not

more deeply impressed hy the completeness of the catalogue of cases been properly thought out, or we think it would never have been

than by any other merit. As regards Crawcour v. Salter, we think that presented in such a crude form.

it might have thrown further light upon some remarks made by our Sub-clause 2:- Having regard to our remarks upon the preceding sub- author, at p. 102, upon the exclusion of reputed ownership. clause, and also having regard to sub-clause 5, we do not think any limit of time should be stated.

Sub.clause 3 appears only reasonable.
Sub-clause 4. - Why should not this be extended to any case where a

The CONVEYANCING AND Law of PROPERTY Act, 1831, AND THE SOLICITORS' bankruptcy petition has been filed (upon a clear act of bankruptcy

REMUNERATION Act, 1881, WITH EXPLANATORY AND PRACTICAL Notes committed), even though an adjudication has not been made, first, how

AND PRECEDENTS IN CONVEYANCING. By Merron White, Barrister-atever, requiring notice of the petition to be served upon the legal personal

Law. Shaw & Sons. representatives of the parties entitled to take out administration ? In We have here a very compact and convenient edition of the Convey. Any event we would urge that there ought to be power to adjudicate ancing Act, which, as regards size, type, and paper, leaves nothing to be

desired. The convenience of the reader is consulted in the large type

INCORPORATED LAW SOCIETY'S CALENDAR. numbers to the sections and at the head of each margin, and there is a good index. Small as these matters may appear, they are of con- THE INCORPORATED Law Society's Calendar FOR THE Year, 1882. siderable importance to the practitioner who wants to get rapidly to a

By Authority of the Council. particular provision of the Act. As to the notes, we cannot speak in

We need not do more than note the appearance of this calendar, and terms of unqualified commendation. They are sometimes useful and suggest, for the consideration of the council, that in the local list of practical—as, for instance, the observation on section 3, sub-section (6), country members and the list of foreign correspondents, it would be a that no provision is made by that sub-section for expenses incurred in convenience if the names of the towns or places were printed in thicker tracing or getting in the legal estate, or for questions respecting want or type, and always placed on the right-hand side of the page. deficiency of stamps, or want of registration of deeds. In other cases the notes contain explanations of the law before the Act, which are often of value in showing the precise alterations effected. But we do not often find explanations of the numerous difficulties of the Act. The notes are too often mere summaries of the effect of the sections, which can only be

CORRESPONDENCE. of use to the hasty reader. There does not seem to be much advantage, for instance, in appending to section 14, sub-section (9)—which provides

THE REPEAL OF LORD CRANWORTH'S ACT. that "this section applies to leases made either before or after the commencement of this Act, and shall have effect notwithstanding any

[To the Editor of the Solicitors' Journal.] stipulation to the contrary"--a note stating that" it will be noticed that Sir,-- You gave some countenonce in your last issue to the remark in this section is retrospective, and cannot be excluded by any stipulation Clerke and Brett's Commentary on the Conveyancing Act, to the effect to the contrary"; or in appending to section 31, sub-sections (7) and that it does not seem possible by any construction of the section, how. (8), a note that "it is important to notice that this section applies, ever liberal, to continue the operation of Lord Cranworth's Act in favour unless a contrary intention is expressed, to trusts created either before of instruments from which provisions have been omitted in reliance or after the commencement of this Act.” That is surely sufficiently upon the powers conferred by that Act, beyond the date of its repeal. plainly stated in the sub-sections themselves. Nor are the notes always I dissent from this view and venture to say a word or two against it. accurate. For instance, on p. 87 we find it stated that "the attorney Lord Cranworth’s Act, as its title imports, gives to trustees, mortgagees, should exercise his powers in the name of his principal, and use and sign and others certain powers, and its provisions, speaking generally, are to his principal's name instead of his own”-an observation which seems extend only to persons entitled or acting under instruments executed to bave been penned in forgetfulness of section 46, which provides after its passing: that “the donee of a power of attorney may, if he thinks fit, execute The question in controversy is the me ng of the saving out of the or do any assurance, instrument, or thing in and with his own name and repealing section of the Conveyancing Act of “any operation, effect, or signature and his own seal, where sealing is required, by the authority consequence" of any instrument executed before the repeal takes effect. of the donor of the power." And what does Mr. White mean by saying It is not necessary to deny that the application to any instrument of in the note at p. 125, that section 65, sub-section (5), "provides a means the powers conferred by Lord Cranworth's Act, or the exercise of any of of disentailing the leaseholds”? We should rather have said that the those powers, is, in a sense, a consequence of that Act; but the powers object of the sub-section is to provide a means of entailing leaseholds are a dead letter until attracted by the existence of an instrument to by converting them into entailed freeholds.

which they apply, and they are then part of the statute law governing that instrument. Surely the terms 'operation,” effect," and

consequence” of any instrument properly describe the operation, CHITTY'S STATUTES.

effect, and consequence arising from such instrument as it is affected, not THE STATUTES OF PRACTICAL UTILITY IN THE CIVIL AND CRIMINAL only by rules of law and equity, but also by statute law. Therefore

ADMINISTRATION OF JUSTICE PASSED 44 & 45 Vict. (1881), ALPHA- these terms must be fully suficient to save the powers of Lord Cran.
BETICALLY ARRANGED, WITH Notes THEREON AND A Copious INDEX. worth's Act in the case of any instrument to which it applied.
By J. M. Lely, Esq., Barrister-at-Law. Vol. 1, Part 1. H. Sweet ; Temple, Jan. 16.

A. J. Wood. Stevens & Sons.

[No doubt “ the terms operation,' effect,' and 'consequence of any A considerable use of the last edition of Chitty's Statutes has fully instrument properly describe the operation, effect, and consequence confirmed the favourable opinion we expressed of that work on its arising from such instrument as it is affected, not only by rules of appearance. We can say, with some confidence, that the convenience law and equity, but also by statute law," so long as such statute law of such a work to the practising lawyer can hardly be over-estimated. remains in existence. But the question is about what happens when the The selection of statutes is judicious, and the notes are just sufficient to statute law is repealed, and here we are unable to follow our correput the reader on the right track for information. In the present sup. spondent's argument, which, if it is good for anything, seems to supersede plement Mr. Lely has selected thirty-one out of the seventy-two public the need ever to insert any saving clause at all. Does our correspondent Acts passed last session, and has grouped them under their proper think that, when any of the "rules of law and equity" are repealed (as, headings, appending explanatory notes. The value of such a commentary for example, the rules of equity relating to the consolidation of mortwill be seen from the notes to the first, and apparently least noteworthy, gages), they will continue, without the aid of a saving clause, to govern Acts in the volume—the Statute Law Revision Act and the Expiring the construction of instruments executed before the repeal ? And if not, Laws Continuance Act. Points which might puzzle the reader in these nothing is gained by what appears to be our correspondent's contention, Acts are carefully explained, and references given to the places in Chitty's that statute law is entitled to the same privileges in this respect as“ rules Statutes where the repealed or continued enactments are to be found. So of law and equity." We thought that the courts would probably with the other Acts of the session, including the Conveyancing Act, contrive to wriggle out of the difficulty by some such loophole as that which is extensively annotated. The result is to give to the lawyer who suggested by our correspondent; but we retain our opinion that they boys this volume an intelligent explanation of all the practical Acts passed ought not to have been (quite needlessly) forced to perform such a during the session ; and this, we imagine, is an advantage which will be painful and undignified feat.-Ed. S.J.] extensively appreciated.



[To the Editor of the Solicitors' Journal.] 1. JANUARY TO JUNE. Printed by Howard & Jones.

Sir, I am aware that you express an opinion very prevalent among The idea of this diary, which is stated be be entirely novel, seems to solicitors, when you say that the power of leasing given by section 18 of us to be excellent. In a work which will conveniently go into the coat the Act should be always expressly excluded. pocket there is given a page for each day, which contains space, first of I venture respectfully to contest this view. A power to lease for all, for summonses and appointments, as to which there are four columns years at a rack-rent is one which a mortgagor may often have --the first headed “ Matter or cause," the second "Nature of summons

occasion to exercise in the prudent management of the property, and it or place of appointment" the third “Result," and the last "Tima''; the

seems to me that he ought not to be deprived of so useful a power, various working hours of the day being here inserted. The solicitor who except when the nature of the property or other circumstances makes it makes an appointment has, therefore, only to mark on the line of the probable, in the opinion of the mortgagor's advisers, that a lease granted hour the name of the matter and the place of appointment, and he has under it would materially diminish the value of the security, which I in his pocket a reminder of his engagements. Below this there is space apprehend would not, as a general rule, be the case. for entering “general work"; below that again, space for noting letters As regards the power to grant building leases, it is not worth while to be written, and, finally, at the foot of the page there are three columns, to negative it where the property is not suited for building purposes, and headed Pleadings, containing space for “ Papers to counsel,” “Docu- | where it is, the question whether the power is to be retained, or excluded, ments to be drawn," and "Last day to deliver or file." The advantage or varied, will always be a matter of special arrangement. of having the whole day's work thus classified and noted on a single page

Lincolu's-inn, Jan. 14.

JOHN WHITOOMBE. of a pocket-book appears to us to be very great.

[Our correspondent seems to misapprehend the grounds upon which

we objected to the retention of section 18-viz., that its terms are vague and of dangerous import. We did not object altogether to giving a

CASES OF THE WEEK. proper power of leasing to the mortgagor, though we conceive that this should be done only under special circumstances. If the mortgagee has such a power of leasing as the circumstances require, we are unable to LIQUIDATION PROCEEDINGS — PARTNERS — TRANSFER TO ANOTHER COURT see how the absence of such a power in the mortgagor could injure the -RESOLUTIONS OF JOINT AND SEPARATE CREDITORS-BANKRUPTCY RULES, security, And we think that a power for the mortgagor to grant build. 1870, RR. 285, 288.-In a case of Ex parte Horrocks, before the Court of ing leases at a peppercorn rent for the first five years is one which would Appeal on the 12th inst., a question of some importance in practice arose as to require very special circumstances indeed to justify its insertion. We

the power of creditors to direct that the proceedings under a liquidation peti. cannot help looking with doubt and suspicion upon what seems to be tion filed by partners shall be transferred from the court in which they tho drift of our correspondent's last sentence-viz., that it is not

were originated to another court. Rule 285 of 1870 provides that "in cases

of proceedings for liquidation by arrangement or composition instituted by worth while to exclude a dangerous power unless, at the time of the partners, separate meetings of the different classes of creditors shall be held; making of the security, there appears to be a probability of its abuse. thus, if the partnership consists of A., B., and C., a meeting of the joint credi. Ed. 8. J.]

tors of A., B., and C. shall be first held, and separate meetings of the separate creditors of A., B., and C. shall be held at a date or time subsequent to the

meeting of the partnership creditors. The joint creditors may come to such CATTLE LEVANT AND COUCHANT,

resolution as they may think fit with regard to the joint estate. The separate [To the Editor of the Solicitors' Journal.]

creditors may also come to such resolution as they may think fit as regards the Sir, -I think that the judgment delivered by Mr. Justice Willes in the determining upon his bankruptcy, or the liquidation of his estate by, arrange

liquidation of the estate of their individual debtor, but, in the event of their case of Carr v. Lambert (L. R. 1 Ex. 168), mentioned by your corres- ment, they shall choose the same trustee, if any, as has been or shall be appondent “Lex," as establishing that the cattle “need not have eaten pointed by the joint or partnership creditors, but they may appoint a com. any of the produce of land drawing common," also explains the meaning mittee of inspection from their own body, if they think fit, or they may adopt of the expression levant and couchant, and implies that they need not have the committee, if any, appointed by the joint or partnership creditors.” And, slept on the premises. The late Mr. Joshua Williams, after giving an by rule 288, “the creditors assembled at any general meeting may include account of the case, says, using some of the words of the judgment :- in their resolution a direction tbat the proceedings be transferred to any court “It appears, therefore, that levancy and couchancy is rather the measure other than that in wbich the same were originated ; and, upon any such resoluof the capacity of the land, than a condition to be actually and literally

tion being filed, the proceedings shall be forth with transferred in accordance complied with by the actual lying down and getting up of the cattle. therewith ; and the court to which the same shall have been transferred sball

Thereafter act in the matter of the proceediogs in like manner as if the same There can, however, be no right of common in respect of a house which has no homestead connected with it in which cattle may be

had been properly instituted therein in the first instance.” In Ex parte Hor

rocks a liquidation fetition was filed in a county court by two partners, and a housed (Williams on Common and other Prescriptive Righte, p. 35) ; | liquidation by arrangement was resolved on at a meeting of the joint creditors, and on p. 31 he says, “It denotes the number of animals which the and a trostee was appointed. On the next day meetings of the separate crediland, to which the right of common belongs, can maintain by its winter tors of each (partner were held, and resolutions to the same effect were passed, eatage or produce—that is, during the season in which, the grass not the same trustee being appointed. Some time afterwards a meeting of the growing, the right of common is of no benefit to the cattle."

joint creditors was held, and a special resolution was passed directing that the 2, Old Buildings, Lincoln's-inn, January 14.

W. O. Maude. proceedings under the petition should be transferred to another county court,

but no meetings of the separate creditors were summoned to consider the propriety of the transfer. The registrar of the county court held that it was

necessary that separate resolutions should be passed at distinct meetings of the THE CONVEYANCING ACT, 1881,

separate creditors, approving of the transfer, and as this had not been done, he [To the Editor of the Solicitors' Journal.]

refused to file the resolution or to make the transfer. His decision was

affirmed by the judge of the county court, and afterwards by the Chief Judge, Sir, Looking at section 40 of this Act, which enables & married and the Court of Appeal (JESSEL, M.R., and Brett and LINDLEY, L.JJ.) woman to execute a power of attorney as if she were unmarried, could adopted the same view. It was urged that, according to the settled practice an attorney, thus appointed, execute leases or conveyances of property in bankruptcy, separate creditors as such had no voice in any of the provested in a married woman in trust for sale, and which the married ceedings under the joint adjudication, except as to the granting of a diswoman had agreed to sell, and by this means avoid the necessity for an charge to the bankrupt, and that in a bankroptcy of partners the joint acknowledgment of every such deed by the married woman trustee ? If creditors would have the power of determining (without the intervention of 80, a useless formality, involving much expense, may be put an end to. the separate creditors) whether the proceedings should be transferred to Preston, Jan. 10.


another court. And it was said that the provisions of rule 285 apply only to

the first meetings of the creditors, and are intended to give the separate (We apprehend that the attorney could not do any act which could creditors an independent voice only on the question how the separate estates not have been done by his principal. It is to be observed that the shall be liquidated. JESSEL, M.R., said that it was clear that the rules in original draft of the Act contemplated the abolition of acknowledgments bankruptcy did not apply to proceedings under a liquidation by arrangement by married women, which fact may perhaps explain the existence of the in all cases. The rules were not easy to construe, but this might not be the doubt expressed by our correspondent.-En. S. J.]

fault of the draftsman. Cases would arise which were not foreseen, and therefore, not provided for ; not from any lack of power of expression or want of knowledge on the part of the draftsman, but from a want of the power of prevision. The question was whether the transfer could be

made without the consent of the separate creditors. Rule 285 was worded On Wednesday, at the meeting of the Faculty of Advocates, the election of generally. It said that “in cases of proceedings for liquidation by arrangea dean, in the room of Mr. Kinnear, recently elevated to the bench, took ment or composition instituted by partners, meetings of the different classes place. There were three candidates-Mr. J. H. A. M'Donald, Q.C.,' sheriff of creditors shall be held,” and it went on to explain that a meeting of the of Perthshire, ex-Solicitor-General for Scotland ; Mr. John Traynor, sheriff joint creditors should be first held, and afterwards separate meetings of the of Forfar ; and Mr. William Mackintosh, procurator of the Church of soparate creditors of each partner. His lordship could find nothing in the Scotland and interim sheriff of Ross and Cromarty. On a division there voted rule to cut down the meaning of these words, which were quite general, for Mr. M'Donald, 96; for Mr. Mackintosh, 42; for Mr. Traynor, 30. and, that being so, they meant that, in all cases in which meetings of

At the Manchester Assizes on Tuesday, before Lord Coleridge, Charles creditors were to be held under proceedings for liquidation instituted by Vine, on bail, a boy aged 10, was charged with setting fire to a stack of hay partners, separate meetings of the joint and separate creditors should be and straw, the property of Isaao Wright. The prisoner had confessed that There was, no doubt, this difficulty : if the rule was read literally, then, if

Would this construction lead to any difficulty upon rule 288 ? he had set fire to the stack with some matches on: of a box which he had the proceedings were instituted by two partners, there would be three pioked up, and having done so, he had ran away home as fast as he could. metings—of the joint creditors and of the separate creditors of each There was no evidence of any express malice on the part of the prisoner, partner—and resolutions might be passed transferring the proceedings as to nor any evidence as to his antecedents or general conduct one way or the the three estates to three different courts. But his lordship thought the true other. At the close of the case for the prosecution, Mr. Mathews submitted meaning of the rule was that the whole of the proceedings should be trans. that there was no case to go to the jury, the prisoner being only ten years ferred to one and the same court. They could not, therefore, be removed at old, and no evidence having been given that the boy was of a mischievous al unless all the three meetings decided on the removal. All three must disposition. Ile ciced the following passage from “ Arobbold's Criminal

concur in the removal, for otherwise the whole of the proceedings could not Pleading,” 19th edition, 1878, page 17 :-“Between the age of seven and be removed. This construction appeared fairly to carry out the meaning of fourteen years an infant shall be deemed prima facie to be doli incapax, but the rules. It could not be known à priori whether the joint or the separate malitia supplet ætatem, and this presumption may be rebutted by strong and creditors would be the larger in amount, and it was a fair thing to say that pregnant evidence of a misobievous discretion." There was no formal proof all should concur in the removal. The practice in bankruptcy had grown of the prisoner's age, but it is stated by the Times' reporter that from his

up under a very different system, and it was manifestly not intended to appearance in the dock tbere is no doubt that in all probability bis age was govern liquidation proceedings. Brett, L.J., concurred. LINDLEY, L.J., that stated in the "calendar"-pamely, ten years. The Lord Chief Justice said that rule 288 was worded so as to apply only to the case of a single said that he considered that the paggage cited applied to this case, and, debtor petitioning, but it must be read as applying also to partners. And having consulted Mr. Justice Bowen, who was of the same opinion, directed he could see no other way of making it workable but by adopting the a verdict of Not Guilty to be returned, and the boy was discharged. construction suggested by the Master of the Rolls, wbich involved no undue straining of the words.-SOLICITORS, Phelps, Sidgwick, f Biddle ; Pitman death in 1880, living in England, and this was known to the beneficiaries. $ Son.

After her death an action was brought by the survivor of the two new trustees

against her executors, claiming, as a creditor in respect of the breach of trust, BANKRUPTCY-REPUTED OWNERSHIP-ORDER AND DISPOSITION—CONSENT

the administration of her estate on behalf of himself and her other creditors. OF TRUE OWNER— Trust PROPERTY_BANKRUPCY Act, 1869, s. 15.-In a

It was objected by the defendants that the plaintiff was not entitled to sno, at case of Ex parte Maston, before the Court of Appeal on the '12th inst., the any rate without making some of the cestuis que trust under the father's question arose whether some stock-in-trade which had belonged to an

will parties to the action; that the breach of trust hał, by virtue of the orders intestate was to be treated as divisible among the creditors of a bankrupt, made in the former suit, been converted into a judgment debt, and that the who had, after the death of the intestate, carried on his business as agent for plaintiff's remedy was barred by the Statate of Limitations; and that, at any his administratrix, on the ground that the goods in question had, with the rate, the demand was one {which a court of equity would consider stale, and consent of the true owner, been in the order and disposition of the bank that the cestuis que trust bad lost their rights by luches and acquiescence. rupt as reputed owner. The court (JESSEL, M.R., and BRETT and LINDLEY, Fry, J., dismissed the action, on the ground that it was an attempt to enforce L.JJ.) came to the conclusion on the evidence that, as a matter of fact, no

a stale demand, and that the cestuis que trust must, under the circumstances, such consent bad ever been given by the administratrix, and it became be taken to have elected to abandon their personal remedies against the daugh onnecessary to decide the question of law whether her consent, if it had been

ter, and to be content with impounding her interest under the will. This given, would have been sufficient. But Jessel, M.R., said that, without decision was reversed by the Court of Appeal (Lord COLERIDGE, C.J., giving a final opinion, he was disposed to think that by the “true owner

BAGGALLAY, L.J., and Sir James HANNEN).. BAGGALLAY, L.J., who was meant the beneficial owner, and tbat, whether it was or was not

delivered the judgment of the conrt, said that the case of May v. necessary that in the case of trast property the consent of both the legal and Selby (1 Y. & C. Ch. 235) showed that the plaintiff was the proper beneficial owners should be given, it was, at any rate, essential that the person to sue. Also it was the recognized doctrine of equity that, as consent of the beneficial owner should be given. The consent of a bare

between a trustee and his cestui que trust, no time would operate as trustee could not deprive the beneficial owner of his property.-SOLICITORS,

a bar to the equitable claim of the latter in respect of a breach of Pitman & Son ; G. L. P. Eyre g Co.

an express trust, and soction 25 (sub-section 2) of the Judicature Act of 1873 contained a statutory declaration of this rule. Nor did tbeir lordsbips thiok

that ther were any substantial grounds for making the presumption which COMPANY WINDING UP – WISHES OF CONTRIBUTORIES FAILURE OF

Fry, J., had made. It was a well-established rule that a cestui que trust who, OBJECTS OF COMPANY.-In a case of In re The Haven Gold Mining Company, knowing that his trustee had committed a breach of trust, obtained from him before the Court of Appeal on the 14th inst., the question arose whether an

a part only of that to which he was entitled, did not thereby waive his right order ought to be made to wind up a company on the petition of some share.

to such further relief as he might be able to obtain, unless there was someholders, though the large majority of the shareholders desired that the com

thing in the surrounding circumstances from which an intention so to do pany should go on. The company was formed for the purpose of working for could be clearly inferred. Their lordships thought that no such inference gold in some land in New Zealand, in which the company were supposed to

could be drawn from the conduct of the cestuis que trust in the present case. have acquired mining rights. The company was formed in 1880, and soon

It was not suggested that, at the time when the order on further consideration after the formation it was discovered that there was a difficulty about the

was made, the daughter had any property in this country, other than her title to the property, and in May, 1881, information was received from New interest in the trust estate, which could be made available to satisfy what she Zealand that the land was in the possession of, and was being worked by, a

might be ordered to pay. Tbe cestuis qur trust got what they could out of person who claimed it uoder a title prior in date to that of the person through to suggest that they intended to waive any rights which they might have

the wreck by impounding her interest, and there was nothing in their conduct whom the company claimed, and whose title had been registered before the registration of the title of the company's predecessor. This information was

against her or her estate should she again come within the jurisdiction of the confirmed in September, 1881, and the directors then summored a meeting of court, or become possessed of property, which might be made available for the the shareholders, and advised them that it was hopeless to attempt to proceed satisfaction of their demand. Nor did their conduct, subsequently to the with the undertaking, and that the company ought to be wound up voluntarily. order on further consideration, give rise to any such inference. It was not The great majority of the shareholders, however, wished to go on, and resolved suggested that after her return to England in 1870 she was, to the to send out an agent to New Zealand to endeavour to obtain an extension of the knowledge of any of the cestuis que trust, possessed of any property supposed mining rights, the original grant of which to the company's prede- taken proceedings would, in all probability, have led to further ex

to satisfy their claims. To have cessor would soon expire. Under these circumstances, Bacon, V.O., refused to make a winding-op order on the petition of some shareholders. The Court of pense and loss. Moreover, at the time when the present action was com. Appeal (JESSEL, M.R., and Brett and LINDLEY, L.JJ.) held that the company and by 'no act of their own could those infants be debarred of their rights.

menced, some of the persons interested in the trust estate were still infants, onght to be wound up. JESSEL, M.R., said that it must be taken to have been proved that no title could be shown to the property. Could then the majority But it was said that the claim of a cestui que trust could be barred by lapse of

This point did not appear to have been brought to the attention of Fry, J. of the shareholders bind the minority to go on with the speculation because they time operating against his trustee, and in support of this proposition the casa chose to assume that there was some small chance of ultimate success ? Could of Hovenden v. "Lord Annesley (2 Sch. & Lef

. 607) was relied on. Lord it be said that there was any reasonable prospect of ever acqairing the supposed property? No doubt the court would have regard to the wishes of the Redesdale, however, was there dealing, not with a case between a cestui que shareholders. But when the whole sub-stratom of the company had no

trust and his trustee in respect of a breach of an express trust committed by existence, and it was clear that it could never

carry on business, the minority whom it was proposed to treat as a constructive trustee by reason of dealings

the trustee, but with a case between a cestui que trust and a third person, had a right to bave it wound up. Brett, L.J., said that, the company not being insolvent, and the majority of the shareholders desiring to go on,

between himself and the express trustee. Nor was there anything in the con. the court would not interfere nnless there was a total absence of the subject. duct of the present plaintiff which, had he been a beneficiary under the will

, matter which the company was formed to work, and no reasonable prospect him from enforcing any claim which he might otherwise bave bad against the

would have amounted to acquiescence or laches on his part sufficient to debar of their obtaining such a property. He thought that this was present case, and that the opinion of the majority of the shareholders that there daughter's estate. Under the circumstances, be was not bound to institute was a chance of success, was unfounded, and ought not to bind the minority. proceedings against her at the risk of having himself to bear the costs of them. -SOLICITORS, Beall ; Harrison ; Preston f Co.

The usual administration order must, therefore, be made, and both parties would have their costs of the appeal as costs in the action.-SOLICITORS,

Jackson f. Wright; Bolton, Robbins, f Busk. TRUSTEE AND CESTUI QUE TRUST - BREACH OF TRUST-STATUTE OF LIMITATIONS —STALE DEMAND.-In a case of Harston v. Tenison, before the SLANDER OF TITLE — NEWSPAPER REPORT - INACCURACY - MALICECourt of Appeal on the 16th inst., the question arose whether the right to SPECIAL DAMAGE-INJUNCTION.-In a case of McGill v. Collingridge, before recover from a trustee the amount of the loss occasioned by a breach of trust Manisty, J. (sitting for Kay, J.), on the 17th inst., a question arose as to whether bad been barred by the Statute of Limitations, or whether, at any rate, the the plaintiffs were entitled to relief under the following circumstances :cestuis que trust bad lost their remedy by delay and acquiescence. By the The defendants were the proprietors and publishers of a newspaper, and the will of a testator who died in 1836 his son and his daughter were appointed plaintiffs were respectivelý the owner and licensee of a patent. The plaintiffs, trustees and executors. The son afterwards, with the assent of the daughter, in November, 1880, discovered that certain persons were selling an American received the proceeds of sale of some stock' which formed part of the estate, invention, alleged to be an infringement of their patent, and they com menced and applied the money to his own use. In 1856 new trustees were appointed three actions to restrain the piracy. On the 17th of December, 1880, motions in place of the son and the daughter. In 1858 some of the beneficiaries were made in all three actions to restrain the iofringement until the trial, and instituted a suit in the Court of Chancery, against the old and the new trus- in two of the actions orders by consent were made, granting injunctions tees, for the execution of the trusts of the will, and in 1859 a decree for their until the trial, and in the third the motion was directed to stand over, the execution was made, and inquiries as to breaches of trust were directed. In defendant in the meantime undertaking to keep an account. On the 18th of 1860 the chief clerk found the amount of the loss which bad been occasioned December, 1880, the defendants published what purported to be s report of two by the breach of trust, and an order was made that the daughter should, of the motions, and in it they stated, amongst other things, that the Master of within six months, transfer into court the amount of the stock the proceeds the Rolls had said that he did not see there was any patent in the plaintiffs' of which had been misapplied. She failed to obey this order, and process of invention, as he had seen plenty similar articles on many occasions. This contempt was issued against her, but she avoided it by going abroad, where statement, and others in the report, were admittedly inaccurate, and the she remained until 1870. No sequestration was issued against her. On the plaintiffs, on discovering the fact of the insertion, wrote to the defendants, further coosideration of the suit in 1863, an order was made that her interest requiring them to insert an amended report, with an editorial comment, showunder the will (a life interest) should be impounded and applied in making ing how the mistake had arisen. The defendants did subsequently insert an good pro tanto the breach of trust. No personal order was, bowever, made amended report with a short editorial, but the plaintiffs, not considering the against her for payment of the amount of the defalcation, either on this defendants had complied with their requirements, commenced this action to occasion or on the subsequent further consideration of the cause in 1866, nor restrain the defendants from printing or publishing any further copies of their were any further steps taken against her, though she was, from 1870 until her issue of the 18th of December, 1880, and for damages. The defendants had

[ocr errors][ocr errors]


broken up their type of that issue, and stated in their defence that they only the agreement was to be void and of no effect (but in estimating the £5,000, had a few copies in their possession for reference and not for sale. They also credit was to be given for all moneys expended by Smith upon the works), stated in their defence that the report was received from their ordinary and Wallis should not be called upon to pay or give any compensation or satisreporter, and that it was inserted bona fide and without malice. The plaintiffs faction for any moneys expended by Smith in pursuance of the agreement, alleged generally in their statement of claim that the sales of their patented the object and intention being that Wallis, upon such events bappening, article had fallen off after the report, and adduced evidence in support of such should have, and if necessary retake, possession of the estate, with all buildstatement. MANISTY, J., in reference to the injunction asked for, was of ings and works erected thereon, discharged from the agreement, without any opinion, as the defendants had broken up their type and did not intend to sell interference on the part of Smith, but such breach was not to be the con. any further copies of the inaccurate report, that no such injunction was sequence of a misconstruction of the language or meaning of any of the pro. necessary, and that the same ought not to be granted. He considered that visions of the agreement. It was lastly provided, by clause 26, that if Wallis the action was in effect one for slander of title, and that the_gist of such an sbould fail to fulfil any of the conditions or stipulations on his part, or should in action was the allegation and proof of special damage. He did not think any way hinder Smith in the performance by him of the stipulations, or interfere that the general statement of damage in the statement of claim, on the with the exercise of any discretion thereby reserved to Smith, or do any at authority of the case of Malachy v. Soper (3 Bing. N. C. 371), was sufficient prejudicial to the carrying out of the agreement in the manner most proốtable to support the action, and that on that ground the plaintiffs could not succeed. to the parties, then Smith should be entitled to take possession of the whole of But even if such allegations were sufficient, the plaintiffs had failed to prove the estate as owner in fee simple, without any farther payment on account of that their sales bad fallen off in consequence of the untrue report of purchase-money, and should receive from Wallis a conveyanco thereof, and the defendants, The importation of the American machines no doubt had Wallis should have no further interest therein, or in the agreement, or any of caused this, and he could not put it down to the defendants' paper. The the works, but the same should belong absolutely lo Smith. Immediately after plaintiffs' case, therefore, failed, and the action must be dismissed, but as the the execution of this agreement, another agreement was executed by the defendants bad acted negligently in inserting such a report, it would be parties for the sale of the estate to Smith, but the second agreement contemdismissed without costs.-SOLICITORS, E. W. Owles ; De Jersey, Micklem, & plated, with regard to the proposed works, was never executed. No part of Co.

the deposit of £5,000 was ever paid by Smith. He failed to perform the agree

ment in any respect, and refused to do so, and he never expended anything CONTRACT-BREACH OF STIPULATIONS-PROVISION FOR FORFEITURE OF

upon works under it. In December, 1879, Wallis commenced the action, SPECIFIED SUM-LIQUIDATED Damages on Penalty.-In a case of Wallis alleging that he had sustained damage in excess of £5,000 by reason of the v. Smith, before Fry, J., on the 14th inst., the question arose whether a eum by way of liquidated damages. *On behalf of the defendant it was contended

defendant's default, and claiming an order that the defendant should pay £500 which was to be forfeited by one of the parties to a contract as liquidated that the £5,000 was really in the nature of a penalty, though it was called in damages, on his failing to perform the provisions therein contained, was to be taken to be only a penalty against which the court would relieve. The con

agreement liquidatel damages. Fry, J., declined to adopt this view. tract was entered into in August, 1879, between Wallis, the owner of some

He said that the short effect of the agreement was, that Wallis was to put into land in the neighbourhood of London, and Smith, a civil engineer. The the common enterprize the land, which was to be deemed to be of the value of agreement stated that there was on the land a large deposit of Clay suitable £70,000, and Smith was to bring in working capital to the extent, if necessary, of for the manufacture of bricks, tiles, and terra cotta ware, and that the land / £70,000, the whole of which was ultimately to be repaid, except £5,000, which was suitable for the erection of villas

, and that, for the purpose of developing he was to sink in the estate. Then clause 25 provided that the breach of the the estate, it had been agreed between the parties as thereinafter stated. And contract, opon which the forfeiture of the £5,000 was to take place, must be it was provided that Wallis was to sell the estate to Smith at the price of £70,000,

a substantial breach ; it must go to the substance of the contract. In the next and that Smith was to provide the necessary capital, not exceeding £70,000, for plaee, it must be what might be described as a wilful breach. In the next the purpose of laying out and making the necessary roads and drains for the estate place, the effect of the clause was that, if more than £5,000 had been ex. and to erect houses thereon. If necessary, two contracts between the parties were pended by Smith on the estate, the estate would revest in Wallis, discharged to be prepared, one for the sale

of the estate, and the other providing that Smith from any right of repayment in Smitb. To that extent the clause had very should, on account of Wallis, construct the roads and manufacture on the little operation, for, if Smith had expended a sum of money on the land, and estate bricks, &c., and generally do all works necessary, at a price to be paid had then declined to go on with his contract, the land would, in the absence of by Wallis to him as thereinafter mentioned. The two contracts were to be any such clause, belong to Wallis, and Smith would lose his money. It had read as between the parties as one.

have а lien on the such pcrtions of the land as might be necessary for the works, from time to his lordship thought that a man who had broken his contract could not Wallis was to give Smith possession of been, indeed, suggested that Smith would

had expended, but, on principle, roads, and, in consideration of this, Smith was to provide £70,000 for the pur- bave any such right. If anything short of £5,000 had been expended by pose of executing the works, when and as the same might be required, so that Smith, he was to pay the differens to Wallis. The agreement evidently ibe works should be prosecuted forthwith with due diligence.

A deposit of contemplated the deposit as the primary fund to pay the £5,000. And it £5,000 on the purchase-mones of the estate was to be paid by Smith, £500 of must be observed that £5,000 was also the sum which Wallis was to pay to it on the execution of the contract, and the balance within seven months; the Smith, in the event of his not showing a title to the land, and it was also money when paid to be placed on a deposit account in a bank in the 'joint he sum which Smith was to sink in the land in the event of the agreement names of Wallis and Smith. On the execution of the contract and on payment being carried out. His lordship could not come to any other conclusion than of the £500, Wallis was to give Smith possession of such portions of the land that the parties meant that, if Smith prevented Wallis from getting the beneas might be necessary for carrying out the contract, and Smitha was at once to Wallis the difference between it and the money which he had expended. This

fit of the agreement, he should either leave the £5,000 in the land, or pay proceed with the works, which were to be finished within ten years from the conclusion was strengthened by clause 26. Was there anything in the authori. date of the contract. If the works were not then completed, such portions ties contrary to this conclusion ? The question whether a sum of money was of the estate as might be unsold were to be sold by auction, and the proceeds of sale, after paying what might be due to Smith in respect

a penalty or liquidated damages was one of construction. That was the pri. of moneys expended on the works, were to be applied in paying the balance mary role, and there were other subordinate ones. It was clear that the use of the purchase-money of £70,000, and the ultimate balance was to be divided that, if under the agreement a number of things of different importance were

was not conclusive. It was also clear equally between Smith and Wallis. So soon as Smith should have spent £5,000 on the works, he was to be entitled to receive back the deposit lodged in the to be done, and one large sum was mentioned as to be paid on default in the bank. The $70,000 was to be continued by him in the works until they doing of any of them, the court would, if it could, construe it as a penalty, were all finished. After the deposit of the £500, the title of Wallis to the and not as liquidated damages. But in the present case the clause applie i estate was to be investigated, and, if he was unable to prodace a good title, only to a breach which was

at once wilful and substantial, and such a breach Smith was to be entitled to receive back the deposit of £500, and, in addition, applied to one act only. There were other cases which showed that, when &

must always be of importance to the parties. The clause, therefore, really Wallis was to pay him $5,000 as liquidated damages. The proceeds of the sale of the bricks, &c., and of the sale of ground-rents, houses, or land, and ment of the liquidated damage in the event of a breach of the agreement, the

sum was already in the hands of a stakeholder which was to be applied in par. all moneye received under leases, were to be applied from time to time in repaying the capital expended by Smith in excess of £5,000, the intention court would hold that it was to be paid as damages and was not a pensliy. being that the £5,000 expended on the estate was to be treated as in substitu. When a sum of money was set apart to meet a contingenoy, it was diffi. tion for the £5,000 deposit, and the balance was to be applied in payment of cult to say that the stakeholder was not, on the happening of the contingency, the purchase-money of £70,000, and, after these payments had been made, to hand it over at once to the party entitled to it. Those cases bad a strong the proceeds were to be divided equally between Wallis and Smith. There bearing on the present case. Even therefore, if no effect was to be given to was to be, in any event, no personal liability on the part of Smith the parties was that the £5,000 should be paid by Smith on the happening of

the words “liquidated damages," bis lordship thought the primary object of personal liability on the part of Wallis to repay Smith any advances made the events mentioned in clause 25. The plaintift was, therefore, entitled to by him, but they were respectively to look only to the said proceeds for pay: judgment for the £5,000.-SOLicitors, Russell, Son, & Scott : G. H. Terrell. ment and repayment. Smith was to give the whole of his time and personal attention to the works. Nothing in the agreement was to be held to constitute a partnership between the parties. There were various other subsidiary stipu- CASES BEFORE THE BANKRUPTCY REGISTRARS. lations. It was then provided, by clause 25, that, if Smith should commit a substantial breach of the agreement, either in not proceeding forth with with all due

(Before Mr. REGISTRAR MURRAY, acting as Chief Judge.) diligence to carry out and complete the several works contemplated, or ia

January 10.-Ex parte Watkins, Re Watkins. failing to perform any of the provisions therein contained, then, and in either of these events, the deposit of £5,000, whether expended upon the estate or not,

W. presented a petition for liquidation, bat no application was made was to be forfeited, and, if the balance of such deposit had not been paid, for any injunction to restrain actions. then Smith should forfeit and pay a sum equal to the balance, the intention Subsequently to the presentation of the petition, and before the first being that, if default was made by Smith as aforesaid, he should forfoit and meeting, G., a judgment creditor of w., obtained a commitment order pay io Wallis, as and by way of liquidated damages, the sum of £6,000, and against W. for payment of the amount due to him, or for his commit

[ocr errors]
« PreviousContinue »