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Justice James in his judgment; though hardly with his accus- from bringing an action. We think it might go a little further and tomed force and clearness. It must be admitted that in Ex parte provide that where the court should be of opinion that the purchaser, Hattersley (L. R. 8 Ch. D. 601) we have something which payee, or incumbrancer, has received his property, payment, or security approaches closely to a decision that the most important of our
in good faith and for valuable consideration he shall not be mulcted in
Of course we only criteria may be omitted from the reckoning. A pianoforte maker the trustee's costs of the proceedings to recover same.
mean as to the costs in the court of first instance. If such a person had lent a piano upon the “three years' system”; but there was
should choose to appeal, then we would leave him to do so in the ordinary nothing in the character of the hirer to make it more natural for way, and under the ordinary risk as to the costs of such appeal. him than for anybody else to hire pianos. The Chief Judge said When would a person “become bankrupt" within the meaning of this that the existence of “the custom” had been proved conclusively, clause ? The same expression is used in section 92 of the present Act. and that it was one which “the ordinary creditors may be pre. We believe the better opinion is that a person “becomes bankrupt” on resumed to have known”; and he held that, the three years' his committing an act of bankruptcy to which a trustee's title would of hiring not having expired, the piano did not pass to relate back under a subsequent adjudication by virtue of section 11 ; but the trustee in bankruptcy of the hirer.
we are not aware that this has been expressly decided, and, certainly, the We do not believe
point is open to considerable doubt. If this should be the correct interthat the number of hired pianos does in fact stand to the pretation of the term, we think it might equitably be altered by extending number of pianos not hired in such a ratio as to raise a the time to six months and providing that such time should date from the primâ facie presumption that any piano picked at random is actual adjudication, or at least from the presentation of the petition upon probably a hired one; so that in this case “the custom” was which adjudication is made. only a custom to lend, and not a custom to hire. The learned Lastly, we would call attention to the complete alteration of the judge does not appear to have clearly adverted to this distinction wording of this clause from section 92 of the present Act. We think it between one custom and another. In order to bring the case
would be much safer if the wording of the section were more closely within the principle of Crawcour v. Salter something further followed, seeing that the only changes apparently contemplated in the law
are the introduction of “the court" to decide as to the intention of seems to have been required in the hirer, in order to account for the person making the preference, and the omission of the saving clause his hiring a piano, instead of (like most people) not hiring one at the end. e.g., that he was the proprietor of a dancing academy, and that Sub-clause 2.-Section 71 of the Bankrupt Law Consolidation Act, such persons are especially in the habit of hiring pianos. It seems 1849, made such a payment or delivery of property an act of bankruptcy, to follow, either that the judges who decided Crawcour v. Salter but that was entirely repealed by the Act of 1869 and no similar provision appealed to much too narrow rules, or else that Ex parte Hattersley and it seems to us that it is scarcely necessary, having regard to sections
re-enacted. This would not operate to the extent that that section did, is of doubtful authority.
11, 94, and 95 of the Act of 1869, none of which are proposed to be repealed. It would, in effect, only operate as against a creditor presenting a bankruptcy petition upon an act of bankruptcy under clause 5, sub
clause (e.), and we doubt very much the policy of the proposal in this BANKRUPTCY LAW REFORM.
The sections of the Act of 1869 relating to the disclaimer by trustecs
of onerous property (viz., sections 23 and 24) have given rise to a conX.
siderable amount of litigation, as a result of which the general opinion is SINCE the case of Butcher v. Stead (24 W. R. 462, L. R. 7 H. L. 839) that those sections are very unsatisfactory in many respects.
With the change in the law as to fraudulent preferences made by section 92 of regard to the effect of a disclaimer of a lease upon a sub-lessee, the Court the Act of 1869 has been much complained of in many quarters. The of Appeal were, in Ex parte Walton, Re Levy (L. R. 17 Ch. D. 746), comsaving clause at the end of that section, “but this section shall not pelled to some extent to do violence to the wording of section 23 in order affect the rights of a purchaser, payee, or incumbrancer in good faith, to make common sense of it, and it is to be regretted that the court could and for valuable consideration,” was, we think we may safely say,
not see its way to do a little more violence to it in regard to the effect of little thought of by practitioners until the point came to be raised in an a disclaimer upon fixtures. The next clause of the Government Bill actual case. Seeing that the present Lord Chancellor dissented from the clause 65) is an attempt to grapple with the dificulties of the question views of the rest of the law lords in that case, and that the present and the evils of the present law. The clause is rather long, but our Solicitor-General was counsel for the appellant, and argued the case remarks upon it will be better comprehended by printing it at length, so against the views of the House, and that the point forms one of the that it may be compared with the sections of the present Act, the place recommendations of the Select Committee of the House of Commons, it of which it is designed to take, and we accordingly do 80 :was quite to be expected that in any alteration of the law of bankruptcy this point would be specially provided for. Accordingly, we find in the tenore bordened with onerous covenants, of shares or stook in companies,
“Clause 65.-(1.) Where any part of the property consists of land of any next clause of the Government Bill of last session which we come to of unprofitable contraots, or of any other property that is unsaleable, or not (clause 64), a proposal which we presume was intended to take the place readily saleable, by reason of its binding the possessor thereof to the perof section 92 of the present Act, though by some oversight that section formance of any onerous act, or to the payment of any sum of money, the is omitted from the schedule to the Bill containing the Acts and portions trustee, notwithstanding that he has endeavoured to sell or has taken of Acts to be repealed. Clause 64 is as follows:
possession of the property, or exercised any act of ownership in relation "64.—(1.) If a debtor makes any payment, or gives or delivers any satis- thereto, bat subject to the provisions of this section, may, by writing faction or security to a creditor in respect of a debt, the consideration for signed by bim, disclaim the property. which was either wholly or partly antecedent to the date of the payment,
“ (2.) On the execution of the disclaimer the property disclaimedgift, or delivery, and becomes bankrupt within three months after that date, “(a.) if a contract, sball be deemed to have determined at the date of the and the court is of opinion that the payment, gift, or delivery was volun- order of adjudication, so far as regards the interest of the bankrupt therein, tarily made by the debtor with a view of giving the creditor an undue and the liability of himself and his property and of the trustee thereander ; proference over other creditors, the oourt may declare the payment, gift, or
and delivery to be void as against the trustee in the bankruptoy.
" (6.) if a lease, shall be deemed to have determined at the same date, “ (2.) If a debtor pays any money or delivers any property to a creditor so far as regards the interest of the bankrupt therein, and the liability of who has presented a bankruptoy petition against him, and within twenty. himself and his property and the trustee to the performance of the covenants eight days after the payment or delivery, another bankroptoy petition is and conditions thereof; and presented against the debtor, and he is adjudicated bankrupt thereon, the (c.) if shares or stook in a company, shall be deemed to have been payment or delivery sball be void against the trustee in the bankruptoy." forfeited at the same date ; and With regard to the omission from sub-clause 1 of the words before to the person (if any) entitled thereto on the determination of the estate or
“ (d.) whatever be its datare, shall (unless the court otherwise order) pass quoted with which section 92 of the present Act concludes, it certainly interest of the bankrupt therein, but in no caso sball any estate or interest is a difficult thing to prove that a payee or incumbrancer has not
or liability therein or thereunder remain in the bankrupt. received his payment or security in good faith, so that at present the law of fraudulent preference is to a great extent a dead letter; but, on the faith by the trustee in reference to
“(3.) The disclaimer shall not prejudice any act previously done in good
disclaimed property. other hand, it would be very hard that a person receiving payment of
“(4.) The trustee shall not be entitled to disclaim any property in pursuhis debt in perfect good faith (as was the case in Butcher v. Stead)
ance of this section in any case where an application in writing has been made should be condemned by the law as a wrongdoer, and compelled to repay to the trustee by any person interested in the property requiring him to decide what he may have received and be also liable to an action and all the whether be will disclaim or not, and the trustee has for a period of twentycosts thereof. That would be going from one extreme to the other, and eight days after the receipt of the application, or such extended period as may there ought, we think, to be some protection given to such a person be allowed by the court, declined or neglected to give notice whether he disa especially as to costs. This sub-clause to some extent seems to contem- claims the property or not. plate something of the kind by providing that “ the court" shall be the “(5.) In the case of a contract, if the trustee, after soch application as tribunal to try the question, thus, as we take it, precluding the trustee | aforesaid, does not, within the said period or extended period, disclaim the contract, he shall be deemed to have adopted it on the responsibility and at being personally liable on the contract, would be entitled to be indemni. the expense of the estate.
fied out of the estate. Whatever be the intention, it ought, at any rate, "(6.) A trustee shall not be entitled to disclaim a lease without the leave to be more clearly expressed to avoid litigation on the point. of the coart.
Sub-clause 6 would enact in effect rule 28 of the Bankruptcy Rules, "(7.) The court may, on application by any person claiming any interest in 1871. In Roed v. Harvey (28 W. R. 423, L. R. 5 Q. B. D. 184) the any disclaimed leasehold property, make an order for payment, either by the Queen's
Bench Division held that the rule only regulated the procedure, trustee personally or out of the bankrupt's property, of such sum as it thinks and that a disclaimer of a leasehold interest by a trustee was operative, fit in respect of the breach of any covenant relating to the leasehold property, and running with the land, provided that the breach has occurred with the though no application for leave to disclaim had been made to the court. knowledge of the trustee, and before the date of the disclaimer.
The effect of providing by enactment for the leave of the court to “(8.), The court may, on application by any person claiming any interest disclaim being obtained would be to reverse that decision. in any disclaimed property, and on hearing such persons as it thinks fit, make The effect of the clause generally (particularly sub-clauses 7 and 8) an order for the vesting of the property in or delivery thereof (with any deeds upon sub-lessees and mortgagees has been so fully discussed in these or documents relating thereto) to any person entitled thereto, or a trustee for columns (25 SOLICITORS' JOURNAL, pp. 469, 486, and 505), that we do him, and on such terms as the court thinks just; and on any such vesting not think we can usefully add anything thereto, agreeing as we cordially order being made, the property comprised therein shall vest accordingly in the do (if we may presume to say so) with the comments there contained. person therein named in that behalf without any conveyance or assigoment Sub-clause 9 is practically the same as the concluding paragraph of for the purpose, and any such vesting order shall not be liable to stamp duty. section 23 of the present Act.
" (9.) Any person injured by the operation of a disclaimer under this sec. tion shall be deemed to be a creditor of the bankrupt to the extent of the Debtors Act, 1870, necessary in consequence of the proposed abolition of
Clause 66 proposes an amendment in section 1 of the Absconding injury, and may accordingly prove the same as a debt under the bankruptcy debtors' summonses and substitution of bankruptcy notices under clause petition."
5, sub-clause (e.), and clause 6. Sub-clause 1 is practically the same as the first portion of section 23.
Clause 67 proposes another innovation in the law of bankruptcy, with The wording is slightly altered in two or three places, and, we think, for regard to married women. The clause is as follows:the better, but the effect appears to be the same. Sub-clause 2 it also an elaboration (obviously with special reference to the into any engagements, otherwise than as the agent of her husband or some
“ Clause 67.-A married woman who has contracted any debts or entered case of Ex parte Walton) of the next portion of section 23. . With regard other person, shall be liable, in respect of her separate estate, to all the to paragraph (6.) thereof, we are strongly of opinion that it ought to be provisions of the principal Act and this Act, and shall be entitled, in respect altered so as not to act as a forfeiture by the trustee of any tenant's of her debts, to the benefit of all the provisions of the principal Act and this fixtures upon the leasehold premises. The law as luid down by the Court Act." of Appeal in the cases of Ex parte Stephens, Re Lavies (26 W. R. 136,
Having regard to the great changes that have been made by recent L. R. 7 Ch. D. 127), Ex parte Brooke, Re Roberts (27 W. R. 255, L. R. legislation in the status of a married woman with respect to her separate 10 Ch. D. 100), and Ex parte Glegg, Re Latham (30 W. R. 144), how- estate, it appears only reasonable that some provision should be made for ever logically correct, is nevertheless most unsatisfactory. We observe the purpose of obtaining an equitable distribution thereof amongst her that the word “determined ” is substituted in the clause for the word creditors, in case it should not be sufficient to pay them all in full. But “surrendered” in the section, but we opine this will not make any is it intended by this clause that a married woman having separate difference upon the point in question, though it would certainly re-open estate, who contracts debts, shall personally be subject to the bankruptcy it for argument on the ground that a tenant has by law a reasonable time laws or only to the extent of having her estate administered thereunder ? after the determination of his tenancy allowed him to remove his fixtures. We should presume that it is not intended to place her personally under Now, why should the lessor be made a present by law of fixtures
any greater liability than the present law places her under, but the clause which, in all moral and equitable fairness, belong to the creditors ?
as drawn is anything but clear. In what way will she “be entitled in The present law has acted most harshly in many cases, particularly in respect of her debts to the benefit of all the provisions of the Acts"? Lancashire and Yorkshire, where mills have been held on lease, the Will she be required to furnish accounts, pass an examination thereon, machinery therein belonging to the tenant, and of necessity for the pur- and apply for a discharge like any ordinary bankrupt? The clause ought, pose of working being fixed to the floors or walls of the building. This
we think, to make special provisions in respect of these matters, for it is machinery in many of such cases has constituted the most valuable asset obvious that a very different course of procedure will require to be of the debtor's estate, and yet because the trustee has been compelled to adopted with respect to a married woman from an ordinary bankrupt. disclaim a burdensome lease he has only been able to do so at the expense Then, again, how would the clause affect married women now trading of so valuable an asset. We have heard of cases where trustees after
on their separate account (as by custom of the city of London) and liable realizing the tenants' fixtures have assigned the leases to paupers, in order to be made bankrupt under the present law ? to get rid of the covenants therein and in consequence of the effect which a
Clauses 68 to 71 are included under the head “ Transitory Provisions.” disclaimer would have upon the fixtures. In other cases too, under pro- The first three make provision for the transfer to the official receiver ceedings for liquidation, the creditors have adjourned the first meeting (instead of the registrar) of the estate of a liquidating debtor on a and appointment of trustee, so that the fixtures might be severed before vacancy in the office of trustee, and of the outstanding property on the the appointment of a trustee (the equivalent to "the date of the order close of a bankruptcy or liquidation, and for the transfer of estates from of adjudication "), and thus be prevented from passing to the lessor on the registrars of the London Bankruptcy Court to such official receiver as the trustee afterwards disclaiming the lease. The credit of this inven. shall be appointed by the Board of Trade for that purpose.. Clause 71 tion must, we believe, be given to Mr. Daniel, Q.C., the judge of the provides for the vesting in the Crown of unclaimed funds or dividends in Bradford County Court. But even if practicable (and they are not the hands of any trustee or other person under the Acts of 1844, 1849, always so), why should a trustee be compelled to resort to such subter- 1861, and 1869, and makes other provisions for the collection thereof, and fuges in order to save for the creditors what, in all moral fairness, for the audit of the accounts of sach persons, upon the application of any ought to belong to them in any event ? We hope this point will be specially and clearly provided for in the next Bill of the Government. shall not extend beyond six years before the passing of this Act, and shall
person interested, with the limit, however (sub-clause 4), “ that the audit Sub-clause 3 might at first sight appear to have been inserted with this not disturb any audit properly held before the date of such application." object, but we do not think it could possibly have that effect, though we
Clause 72 makes provision for the repeal of the enactments mentioned confess we cannot very well see with what other object it has been in the third schedule. Sub-clause 2 provides that such repeal shall not inserted, as it is entirely new. As to paragraph (d.), in conjunction with sub-clause 8; will these affect, inter alia “(6.), any right or privilege acquired, or duty imposed,
or liability or disqualification incurred under any enactment so repealed," effectually provide for the case of a freehold subject to a perpetual rent- and sub-clause 3 further provides for the provisions of the Act of 1869 charge, as was the case in Re Beurdsworth and Moore's Contracts (28 to continue except as provided by the Bill
. We have remarked upon W. Ř. 485) ? We are inclined to think that they will, and, if so, that clause 35 the absence of any provision in the Bill for the dis. will be a provision which is decidedly required.
charge of bankrupts under the present Act who have not obtained Sub-clause 4 is practically the same as section 24 of the present Act. their discharge, but who would be entitled thereto if they came within In Ex parte Davies, Re Sneezum (25 W. R. 49, L. R. 3 Ch. D. 463), it the provisions of this Bill; and we would suggest the modification of this was held that where a trustee in bankruptcy, after having been served sub-clause as well as of clause 35 to meet such cases. with a notice under that section, instead of disclaiming a contract entered
Having concluded our review of the Government proposals for the into by the bankrupt, continued to perform it, but subsequently aban. reform of the law of bankruptcy as contained in the Bill of last session, doned it, the only remedy open to the other contracting party in respect
we propose hereafter to call attention to a number of points which we of such abandonment was by proof for damages against the bankrupt's think ought to be provided for in any amendment of the law at the estate. Sub-clause 5 (which is entirely new) would appear, therefore, to present time, but which have not been touched upon in any way by the have been inserted with a view to meeting a similar case. Now, we do Government Bill. not think that it would sufficiently meet such a case. Suppose there is no estate, it having been exhausted by the trustee carrying on a con. tract (and we have experienced instances of the kind), is the person with whom the contract is made to have no remedy against the trustee ? It
Mr. P. Borrowes Starkey, who for many years was well known on would appear not from the concluding words of the sub-clause, but, on Parliamentary Committees, died on Wednesday, at bin residence in Hanoverthe plher hand, they might be construed to mean only that the trustee, loqoare,
[To the Editor of the Solicitors' Journal.]
Sir, --You notice again in your issue of to-day the objection which has THE CONVEYANCING ACT.
been urged against the 56th section of the Conveyancing Act. Without
in any way questioning the correctness of your interpretation of that THE CONVEYANCING AND LAW OF PROPERTY Act, 1881.
section, I would merely suggest that a solicitor, giving a cheque instead VENDOR AND PURCHASER Act, 1874. With Notes. By W. MANNING of cash, runs no greater risk by trusting to the authority given by the HARRIS, and THOMAS CLARKSON, Barristers-at-Law. Stevens & Sons. statute than he does by acting on the written authority usually given.
This edition of the Act is, like the last one noticed by us, printed That authority, so far as my experience goes, directs the payment of the in a handsome and convenient form. The index also is copious and
purchase-money” to the sulicitor, and I have never known the purgood. But the notes are sometimes meagre, and fail to add much to the chaser's solicitor refuse to pay by cheque, because the vendor's solicitor was information already before the public. For example, a large part of the not expressly authorized to accept payment in that way. commentary on section 5 consists of the following observation : Pay
23, Ely-place, London, E.C., Jan. 28.
ALFRED E. JAMES. ment into court under this section will pro tanto exonerate the purchaser [Possibly so, but does our correspondent see no difference between the (sce section 69 (2) infra); and the declaration of the court under this construction of an authority given by the vendor himself to the purchaser sub-section will discharge the land from the incumbrance (p. 19). to pay to år. A. B. and an authority conferred by statute on the pur. When an edition of the Act appeared a few weeks after it had become chaser to pay to " a solicitor" producing the deed ?-ED. S. J.] law, we were not disposed to mark with severity the presence of notes couched in this style. But the learning connected with the Act's contents has advanced 80 far that theso faint echoes of the text
SALES IN LOTS.-A SUGGESTION. might well be omitted. We are surprised, after what has appeared in our
[To the Editor of the Solicitors' Journal.] columps, to find that the note upon section 13 begins with the following expression of opinion :-" It is not clear from the language of this sub
Sir,-It is a common practice in this country to offer an estate for
I section whether the 'reversion' intended is the reversion which will be sale, first in one lot, and if not sold in one lot, then in several lots. immediately expectant on the lease to be granted, or is the reversion
understand that in France än opposite course is followed. There it immediately expectant on the leasehold interest, out of which the new
appears to be usual to put up an estate in the first instance in several lease is to be derived " (p. 51). Whether the strictures which have been lots, the highest bidder for each lot being declared the purchaser, sub.
After all the passed upon the language of section 17 are well founded, we will not ject to the estate not being afterwards sold as a whole. say; but we can confidently say that the language in question requires lots are disposed of, the estate is put up in one lot, at an upset price, some. explanation ; and we find little to help our apprehension in the following what in excess of the aggregate amount of the sums bid for the several comment :- .“ By virtue of this section the above rulo" (as to consolida lots, and if not sold at that price, or an advance on it, the former tion] “will not apply so as to prevent the redemption by itself of a
biddings for the separate lots hold good. mortgage made after December 31, 1881, without a stipulation in the
It is obvious that this method of sale offers some advantage to the mortgage deeds or one of them for that purpose” (p. 59).
We vendor, because under it he is sure of obtaining the greatest price that should have been glad to know what view of the effect of the words which any person or persons will give for the estate, together or separately, we have placed in italios is taken by the authors. This general absence of while under the English plan there is always the chance that an estats explanatory matter is necessarily in our eyes a great defect in a
sold in one lot would have realized more if sold in several lots. commentary upon an Act which, in our opinion, so emphatically stands in
Whether, however, the French plan could be profitably introduced into need of explanation ; und is not sufficiently compensated by remarks England is more than I can say, but sales of estates rather hang on hand which, in themselves useful and meritorious, serve only for the purpose at the present time, and some of your readers may like to try a novelty. of collateral illustration. A commentary upon this Act is likely to be
CONVEYANCER. useful in practice only in proportion as it exhibits a clear judgment in seleoting one view out of the many possible, and in giving reason to
SOLICITORS' REMUNERATION, suppose that the view selected will ultimately prevail in practice,
[To the Editor of the Solicitors' Journal.] Sir, I presume your correspondent's (P. B. P.) letter in to-day's issue
refers to the costs of purchasers' and mortgagees' solicitors, not to the CORRESPONDENCE.
whole costs, but in any case £2 does seem indeed a small charge for a
loan of, say, £100. It should be 3 at the least, exclusive of disburse. THE SOLICITORS' REMUNERATION ACT.
ments. These small loans are of frequent occurrence, and practitioners
who have for their clients people doing business in a small way, require [To the Editor of the Solicitors' Journal.]
that their remuneration should be very carefully weighed before being Sir,- It appears in your issue of the 28th of January that the Council finally adjusted, much more so than the man who acts for the more of the Incorporated Law Society have received the draft of the general wealthy members of society dealing in large transactions ; and I trust order to be made under the Solicitors' Remuneration Act, 1881. This is that the Incorporated Law Society will remember, in considering this inexact.
matter, that they are fixing the maximum, not the minimum of costs, I, as president of this society, and as such, a member of the tribunal and that £1 more or less on a transaction may make a great difference appointed by the Act, have, with the assistance of several members of the to the more humble members of the profession, who perhaps gain their
R. N. R. council and delegates from the associated provincial societies, drafted a living only by small matters. scale, which has been sent to the Lord Chancellor, Lord Coleridge, the
Jan. 28. Master of the Rolls, and the president of the Liverpool Law Society-the last of whom has now been appointed a member of the tribunal-for
BILLS OF SALE. their consideration. As it would seem from your article that the month, during the currency
[To the Editor of the Solicitors' Journal.] of which "observations and suggestions" are to be made to the tribunal,
Sir,—The lender of the money mentioned in the letter of your has begun to run, I am desirous of correcting the misapprehension.
correspondent, “A Country Solicitor,” must be an exceptionally honest The month will not begin to run until a draft order has been sent by man, if, under the circumstances therein stated, he would admit that his the tribunal to the Incorporated Law Society.
principal object in lending the money and taking a bill of sale was to C. C. DRUCE, President.
protect the furniture for the benefit of the grantor. The advance of Incorporated Law Society, Chaucery-lane, January 30.
the £100 would unquestionably be a good consideration to support the bill of sale, both under the Statute of Elizabeth and the Bankruptcy Act;
and the mere fact that as a consequence of the proceeding, even though AUTHORITY TO RECEIVE PURCHASE MONEY.
contemplated (for the consequences of all such proceedings must be [To the Editor of the Solicitors' Journal.]
presumed to be contemplated), the goods would be protected from being
seized under an execution, would not, I think, affect its validity. That Sir,-Section 56 of the Conveyancing Act seems open to more objec. is, of course, presuming the grantee had no notice of any act of banktions than you notice.
The section says nothing as to any relationship of solicitor and client, ruptcy previously committed by the grantor. It is in fact a consequence it is merely " a solicitor.” Suppose, then, a sale by three vendors seized of contemplated on the giving of every bill of sale, otherwise the security
would be valueless.
H. P. J. undivided thirds as tenants in common, and each employing separate solici.
Jan. 30. tors. One must execute the conveyance last, and probably on execution hands it to his solicitor; the deed being then executed by all the vendors, the solicitor of one can complete and receive the whole purchase-money,
THE REPEAL OF LORD CRANWORTH'S ACT. when, for many reasons, it may be most undesirable he should do so.
[To the Editor of the Solicitors' Journal.] Qucre, in such a case would notice to the purchaser be binding ? Sir,-Suppose a plain man-a fairly intelligent layman, let us say20, Lincoln's Inn-fields, London, W.O., Jan, 28. WM. MAUDE. were to have explained to him the question in controversy in your
columns, as to whether parts 2 and 3 of Lord Cranworth's Act being dated 12th of December, 1881, submitted for their consideration by the repealed, the saving clause in section 71 of the new Act is sufficient to Committee of the Council of the Incorporated Law Society :keep alive powers upon which many mortgagees have silently relied ; 1. That as recommended in the report of the committee of the suppose him to read the preamble, “it is expedient that certain powers Incorporated Law Society, of June, 1880, the Law Society's Scale of and provisions which it is now usual to insert in
mortgages 1880 should, as regards sales, inortgages, and leases, form part of any ... and other instruments, should be made incident to the estates of proposal to be made to the authority constituted under the Solicitors' the persons interested, 80 as to dispense with the necessity of inserting Remuneration Act, with such moderate alterations in certain items as the same in terms in every such instrument," and the language of the may be thought desirable to secure its adoption. 11th section, “shall
have the following powers" (sale, insur- 2. That in cases of settlements of money, the ad valorem commission ance, and appointing a receiver] “ to the same extent (but no more) as if at the same rate as on a purchase should apply. In cases of settlements they had been in terms conferred by the person creating the charge"; of land the ad valorem principle is inapplicable. and suppose him to be told (and truly told) that a deed framed on the 3. That the remuneration to solicitors under the above scale should not faith of these representations had the same “operation" as if the powers include disbursements properly and reasonably made, but fees to counsel and provisions had been expressly set out therein-inserted in invisible are only to be charged where the difficulty or importance of the case ink-but that it is now gravely contended that when the new Act says renders such fees reasonably necessary. that "the repeal shall not affect the validity
4. That as regards instructions for, and drawing and perusing deeds, operation, effect, or consequence of any instrument executed or made wills, and other documents not included in the foregoing scale, such fees
before the commencement of this Act," it uses language peril. shall be allowed, as having regard to the position of the party on whose ously inadequate to accomplish tho purpose ; that the powers are not behalf the document is prepared or perused, the amount of property to implied in the deed ; that the source of the powers is dried up; and that which it relates, the care, skill, labour, and responsibility involved, the if the position of these mortgagees is not truly pitiable and alarming, importance of the document, and the papers to be perused, may be fair the desiderated judicial interpretation will only be contrived by a
and reasonable. process of painful and undignified wriggling and squeezing; I think he 5. That in dealing with any documents, if the length of the document would be ready to exclaim with one of the characters in Much Ado is taken into consideration, the taxing master is not to be bound by the about Nothing, "Sure, sure, such carping is not commendable.”
present charge of 1s. a folio for drawing, which is to be held to bo On the question whether there are sufficient technical grounds for inadequate payment for any special document. challenging the verdict of common sense, I only add this :--Part 4 of 6. That the basis of any cbarges for solicitor's time be 15s. per hour, Lord Cranworth's Act is not repealed. Part 4 (section 32) provided, and equal to £5 58. per day of seven hours. That the charge for business provides, that where there is no prohibitory declaration in the deed, the taking a solicitor from his office, should be $5 58. per day, the time powers, &c., shall take effect only subject to such variations or limita- reasonably occupied in travelling to be charged additionally at the same tions as may be contained in it.
rate, A class of instruments operated in a certain manner by virtue of this
As to ABSTRACTS OF TITLE. unrepealed section ; they therefore continue so to operate unless there is 7. Drawing and copying each brief sheet of eight folios, 108. reason to the contrary ; the only reason to the contrary is subject to the objection that, whatever “operation" they had, is continued to them.
ATTENDANCE. February 1.
H. 8. Such a fee as having regard to the place and circumstances at or in [It may be quite possible that our correspondent's "intelligent which the attendance takes place, the nature and importance of the lasman” would laugh at us for thinking that important Acts of Parlia- business, the amount of property involved, the nature and importance of ment ought to be expressed with the greatest possible clearness, and the papers and documents required to be referred to before and during drafted with the greatest possible accuracy. We must decline to alter the attendance, and the skill and knowledge required may be fair and our opinion in deference to such an authority; and our correspondent reasonable:
In ordinary cases, 108. is welcome to the pleasure (if it gives him any) of sharing the critical
9. That there should be a uniform scale for sales and purchases, and habits of intelligent laymen rather than those of lawyers. It is difficult for mortgages, and that the following should be such scale-viz., up to to say what the last paragraphs of his letter mean; unless they mean that, £200, 3 per cent.; from $200 to $1,000, 2 per cent.; from £1,000 to by virtue of part 4 of Lord Cranworth's Act, parts 2 and 3 continue still £5,000, i per cent. ; above £5,000, 103. per cent. practically unrepealed ; à proposition upon which, both in itself and its
In pursuance of arrangements made at the above meeting, a general consequences, we recommend him to meditate further. This view, if meeting of representatives of the Council of the Incorporated Law Society, adopted, would convict the Conveyancing Act of an oversight much and of the Liverpool, Manchester, Bristol, and Leeds Societies was held more flagrant than that from which our correspondent seeks to defend on the 30th of December, when the following modifications of the pro. it. What will be the judgment of the profession, if the Act, while posed general order were agreed to :making a great parade of repealing one system and substituting another
(1.) In paragraph 2 (a), part 1, £1,000 was substituted for $500, with in its place, shall appear to have left the original system unrepealed ?– a provision for a minimum fee of $4. ED. S. J.]
(2.) In the 1st schedule, part 2 (A) 1, for the amounts there mentioned, the following was substituted :-"The sum of seven-and-a-half per cent.
on the rent reserved up to and including 100, with a minimum fee of THE CONVEYANCING ACT, 1881.
$5; the sum of five per cent. on the further rent reserved from $100 to [To the Editor of the Solicitors' Journal.]
£200; and the sum of two-and-a-half per cent. on the further rent
reserved above $200." Sir,- I do not know whether the attention of your readers has been In the last item of the second schedule, seven hours was substituted called to the difficulties which may arise from sections 5 and 17 of this for eight hours. Act.
The remaining suggestions of the meetings of the 15th and 16th of Under section 5 (as you have pointed out) it appears that a mortgagor December were considered, but no determination was arrived at upon may sell the mortgaged property behind the back of the mortgagee. them. This, however, may place the purchaser's solicitor in a very awkward It was considered that these points might properly, and would be position, for if, in some other mortgage deed, between the mortgagor more conveniently, left in the hands of the London and Provincial and mortgagee, a clause is inserted negativing the operation of section Presidents. 17 (sub-section 1), it appears from sub-section (2) that this would prevent sub-section (1) from applying to any mortgage between the same parties. The purchaser, therefore, might be buying property with respect to
CASES OF THE WEEK. which (for aught he could tell) a right of consolidation might be claimed, and his solicitor would have to require the mortgagor to furnish an abstract
PRACTICE-ORDER TO VABY CHIEP CLERK'S CERTIFICATE AND STRIKE OUT of all mortgages between those parties in order to ascertain whether any EVIDENCE.--In a case of Fox v. Bearblock, before the Court of Appeal on the such clause had been inserted.
HERBERT ROOKE OLDFIELD. 27th ult., the question arose whether, when an order is made to vary a chief clerk's 14, Gray's-inn-square, Jan. 27.
certificate, and to strike out some of the evidence entered therein as the basis of the finding, it is in accordance with the practice to make an actual physical alteration in the original cert ficate by substituting in it the finding as directed to be varied for the original finding, and by erasing from it the evidence directed
to be struck out. The action was brought by the executor of a testatrix for THE ORDER FOR FOR SOLICITORS' the administration of her real and personal estate. The testatrix had died
intestate, by reason of the death before her of her sole devisee and legatee. The REMUNERATION.
defendant, who was the only daughter of a brother of the testatrix, claimed to The following resolutions were passed at a meeting of the Associated of the Crown alleged that the testatrix had no heir and no next of kin living
be her heiress-at-law and sole next of kin. The Attorney General on behalf Provincial Law Societies, held on the 15th and 16th of December, 1881, at at the time of her death, on the ground that her father bad never been legally the Law Institution, Chancery-lane, London, relating to “The Solicitors' married to the lady with whom he had lived as his wife, and consequently Remuneration Act, 1881," and the Draft of Proposed General Order, that all his ebildren were illegitimate. The chief clerk by his certificate found
that this was so, and among the evidence entered in the certificate in support of Chancellor in Ireland, just as well as in this country, for a supersedeas, and this finding was a deposition of the bursar of King's College, Cambridge, of that supersedeas, when obtained, would be transmitted here, and would stop which college the father of the testatrix had been a fellow, to which deposition all proceedings with regard to her English property. The Irish court, there. an entry in a book belonging to the college, called the Liber Protocollorum, fore, and not this court, was the proper forum. It would be shocking to conwas made an exhibit. Upon the hearing of the action on further considera- template that a different result would be obtained in Ireland from that which tion, and on a moti by the defendant to vary the chief clerk's certificate, would be obtained here. There was no more reason, therefore, why this court Fry, J., held (29 W. R. 661, L. R. 17 Ch. D. 429) that the entry in the Liber should attempt to intersere with the Irish jurisdiction than there would be to Protocollorum was not admissible in evidence. And he ordered i hat the expect that the courts there would interfere with tbe decisions of our courts. certificate should be varied by stating, in lieu of the chief clerk's finding, that See what the result would be if a different course were allowed. The petitioner the defendant was the heiress-at-law and the sole next of kin of the testatrix would still be a lunatic in Ireland, but not in England, and her property in At the time of her death. It was also ordered that the entry in the Liber Ireland would still be subject to the Irish jurisdiction. Any interference by Protocollorum, entered in the certificate as part of the evidence, “be struck this court would not conclude the question, but must be partial and imperfect. out from the certificate as being inadmissible in evidence.” After the drawing Beett, L.J., and HOLKER, L.J., concurred. -SOLICITORS, Johnsons, Upton, up of this order the solicitors who acted for the plaintiff and the defendant Budd, & Alkey; Boltons, Robbins f Busk. requested the chief clerk to roake actual physical alterations in the original certificate, in accordance with the terms of the order on further consideration, or at any rate to make a note in the margin stating the effect of that order.
LUNACY-ALLOWANCE_POWER OF COURT.-In a case of In re Weld, before This the chief clerk refused to do, on the ground ibat it would be contrary to the Court of Lunaoy (Jessel, M. R., and BRETT and HOLKER, L.JJ.) on the ordinary practice. The plaintiff then took out a summons, asking that the the 30th ult., a question arose as to the power of a person to whom an allowchief clerk, or one of the masters of the High Court, or other proper officer,
ance is made out of the property of a lupatio to deal with the allowance might be ordered to strike out from the certificate such words as by the order by way of mortgage or otherwise. An order was made on the 2nd of on further consideration were directed so be struck out, or that sucb further August, 1879, that the brother of the lunatio should be at liberty to retain or other order might he made as would give effect to the direction contained in
for his own occupation and use, and be occupation and use of his unmarried that order. Fry, J. (30 W. R. 119), refused to accede to this application. He eisters, the mansion house and grounde, of which tbe lavatio was tenant for said that it was contrary to the practice to make any alterations in existing life, and the furniture therein, and that the sum of £4,000 a year should documents, and that the meaning of the order was that the certificate should be allowed to the brother out of the income of the lanatio's estate, as from be read as if the words in question were struck out of it. When the case came
the 8th of December, 1877, for the brother's expenses in reference to the before the Court of Appeal (JESSEL, M.R., and BRETT and Holker, L.JJ.), mansion bouse and grounds. The income of the property was not at first there appeared to be some difference of opinion between their lordships. It sufficient to pay the allowance in full, and there were arrears to & became, however, unnecessary actually to decide the question whether the view considerable amount unpaid. The brother executed a mortgage of of the practice taken by Fry, J., was right or not, for the appellant's counsel the arrears to beoore an advance made to him by the mortgagee. said that they would be content with an order to take the deposition of the There being afterwards fands in hand applicable to paying the bursar of King's College off the file. And, there being no opposition to this, arrears, the committee of the estate, who had received notice of the the court held that the appellant was entitled to such an order, which was mortgage, and also of certain debts and liabilities inourred by the accordingly made, conditionally upon the Attorney-General raising no objec- brother, which it was alleged ought to have been paid and satisfied tion to it within fourteen days after notice served on him. JESSEL, M.R., bow- by him out of the allowance, petitioned the court for directions as to the ever, in the course of the argument expressed a strong opinion that the prac- application of the funds in his bands applicable to payment of the arrears, tice had been correctly stated by Fry, J. He said that the practice was the having regard to the olaims of wbich he had received notice. The brother same as when an order was made by the Court of Appeal to vary a decree or bad become a bankrupt. The mortgagee also presented a petition, asking judgment of the court of first instance. In such a case the original decree or that be might be at liberty to attend ihe proceedings in the lonacy, so far judgment was never actually altered. If this was to be done, there would be a as they related to the payment of the arrears of the allowance, and to serious addition to the costs of an action. Solicitors would be entitled to make all such applications as he might be advised for the porpose of charge for additional attendances.-SOLICITORS, Crosse 8 Sons,
obtaining payment of bis mortgage debt out of the arrears. On this pet ion an order was made that no payment should be made out of tbe
arrears to the bankrupt or any person claiming through bim, without LUNACY-JURISDICTION SUPERSEDEAS — FINDING BY IRISh Court- notice to the mortgagee. Some prooeedings afterwards took place before LUNACY REGULATION ACT, 1853, s. 52.—In a case of In re Talbot, on the the master. The petition of the committee oame on for hearing, notice 28th ult., an application was made to the Court of Lunacy (JESSEL, M.R., being given to the mortgagee. The Court said that when an allowance is and
Brett and HOLKER, L.JJ.) for a supersedeas of certain proceedings in made in this way in a lonaoy for a specified purpose, the person who is to England in respect of the property in England of a lady who had been found receive it cannot by any dealing with it by way of mortgage or otherwise, a lunatic by the Court of Lupacy in Ireland. After the finding by the Irish nor can bis trusted in bankruptcy, in any way fetter the power of the court court, a transcript of the proceedings there was transmitted to the English over it. He has in fact po right of property in it, but the court has an court, and entered of record there, and directions as to the application of the absolute power to give or withhold the payment as it pleases. And the lunatic's property in England were then given by the English court. The court referred it to the master to ascertain which of the debts claimed Jady afterwards presented a petition to the English court, alleging that the were incurred for the purpose of keeping op the establishment at the finding of the Irish court had been improperly obtained behind her back, and mansion house wbile it was occupied by the bankrupt and his sisters in that she was, in fact, of sound mind, and capable of managing her affairs. pursuance of the order of the court, having regard to the amount of the And she asked that an inquiry might be ordered to take place before a jury allowance.-SOLICITORS, Palmer, Eland, $ Nettleship; G. S. & A. Brandon, as to her state of mind, or that she might be at liberty to attend before the English court to be examined as to her state of mind ; that the proceedings in the English court might be superseded, and a transcript of the writ of super- COMPANY-WINDING UP- FORFEITURE OF LEASE-LEAVE TO LANDLORD TO sedeas transmitted to the
Irish court, and that the transcript of the Irish pro. RESUME POSSESSION-JURISDICTION ON SUMMONS-COMPANIES Act, 1862, s. ceedings transmitted to Eogland might be no longer acted on. Medical 163. -In a case of In re The Wetley Brick and Pottery Company, before the evidence as to the petitioner's state of mind was tendered, but the court Court of Appeal on the 25th ult., the question was raised whether the court refused to admit it. "JESSEL, M.R., said that the court had no power now to has jurisdiction on a summons in the winding up of company to order the order the question of sanity to be tried by jury. The meaning of section 52 liquidator to deliver possession to the company's lessor of property of which of the Act was, that the English court might act upon the decision of the Irisla the company are lessees, the leas, having, by virtue of a proviso contained in court upon baring a transcript of the record of the proceedings forwarded to it, become forfeited. In this case the lease to the company provided that, if this country and entered of record without further inquiry, just as if the the rent should be unpaid for thirty days, or in case the lessees should be proceedings had been originally taken in this country. That b'ing so, op wound up voluntarily, or by compulsion, or otherwise under the provisions of wbat principle did this court act in deciding wherber or not it would follow any Act of Parliament, it should be lawful for the lessor to re-enter. The rent out the decision of the Irish court ? As a general rule the English court would b-ing in arrear, the lessor, after the making of a winding-up order, took out a assume the propriety of the Irish proceedings, though there might be some summons in the winding op, askiog that, in default of paymeot of the rent extraordinary care, as of fraud or of accident-none such, bowever, bad ever within a time to be limited, he might be at liberty to re-enter on the property. come within his knowledge—in which the English court might say ihat it was Hall, V.C., held that the order ought not to be made on summons, but that pot a case for acting on the transcript sent by the Irish court; at all events, the lessor ought to bring an action to recover the land. The Court of Appeal until an opportunity bad been afforded for setting the matter right. In Ire- (Jessel, M.R., and Brett and HOLKBR, L.JJ.) reversed this decision, and land, which was not a foreign country, the Lord Chancellor acted under the made an order that, if the rent in arrear was not paid within a month, sign manual of the Queen in the same way as the Lord Chancellor did in this the liquidator should give up possession to the lessor. JESSEL, M.R., country. The proceedings were the same, and practically there was the same said there
reason why the lessor should be compelled jurisdiction there as here. Acting, therefore, under a similar jurisdiction, to bring an action. He could only be kept out of possession the Lord Chancellor of Ireland had found the petitioner to be lunatic, and, as by an uolawful act. It was not right, in a case where there was no defence to a matter of course, this court would act on the transcript sent over of an action, to compel the lessor to litigate the question. The right course was the proceedings in Ireland. But it was said that ibere had been a for the court to order the liquidator, who was its own officer, to give the miscarriage in those proceedings, and that the pesitioner had been found lessor his legal right. It would be a cruel course to compel him to bring an lunatic upon insufficient inquiry, that she had no notice of the proceedings, action wbich would cause a great waste of time and money. The daty of the and that a deception bad been practised on the Lord Chancellor of Ireland. liquidator was to give up possession to the lessor with the sanction of the If this were so the proper course would be to apply in Treland to set aside the court, and it was perfectly plain that he ought to have been ordered to do so proceedings, and no doubt as good justice might be obtained from the Irish in this case. BRETT, L.J., said that section 163 did not apply to the case. Lord Chancellor as in England. Assume that the applicant failed in setting The order was required only for the purpose of justifying the officer of the aside the finding on the ground of irregularity in the proceedings, but could court in doing what he was bound to do according to the terms of the lease, prove that she was not at present a lunatic, she could apply to the Lord and it ought to have been made as a matter of course, unless some cause to