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Justice James in his judgment; though hardly with his accustomed force and clearness. It must be admitted that in Ex parte Hattersley (L. R. 8 Ch. D. 601) we have something which approaches closely to a decision that the most important of our criteria may be omitted from the reckoning. A pianoforte maker had lent a piano upon the "three years' system" ; but there was nothing in the character of the hirer to make it more natural for him than for anybody else to hire pianos. The Chief Judge said that the existence of "the custom" had been proved conclusively, and that it was one which "the ordinary creditors may be preresumed to have known"; and he held that, the three years' of hiring not having expired, the piano did not pass to the trustee in bankruptcy of the hirer. We do not believe that the number of hired pianos does in fact stand to the number of pianos not hired in such a ratio as to raise a primd facie presumption that any piano picked at random is probably a hired one; so that in this case "the custom" was only a custom to lend, and not a custom to hire. The learned judge does not appear to have clearly adverted to this distinction between one custom and another. In order to bring the case within the principle of Crawcour v. Salter something further seems to have been required in the hirer, in order to account for his hiring a piano, instead of (like most people) not hiring one— e.g., that he was the proprietor of a dancing academy, and that such persons are especially in the habit of hiring pianos. It seems ■to follow, either that the judges who decided Crawcour v. Salter appealed to much too narrow rules, or else that Ex parte Hattersley is of doubtful authority.
BANKRUPTCY LAW REFORM.
Since the case of Butcher v. Stead (24 W. R. 462, L. E. 7 H. L. 839) the change in the law as to fraudulent preferences made by section 92 of the Act of 1869 has been much complained of in many quarters. The saving clause at the end of that section, "but this section shall not affect the rights of a purchaser, payee, or incumbrancer in good faith, and for valuable consideration," was, we think we may safely say, little thought of by practitioners until the point came to be raised in an actual case. Seeing that the present Lord Chancellor dissented from the views of the rest of the law lords in that case, and that the present Solicitor-General was counsel for the appellant, and argued the case against the views of the House, and that the point forms one of the recommendations of the Select Committee of the House of Commons, it 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 next clause of the Government Bill of last session which we come to (clause 64), a proposal which we presume was intended to take the place of section 92 of the present Act, though by some oversight that section iB omitted from the schedule to the Bill containing the Acts and portions of Acts to be repealed. Clause 64 is as follows:—
"64.—(1.) If a debtor makes BDy payment, or gives or delivers any satisfaction or security to a oreditor in respect of a debt, the consideration for which was either wholly or partly antecedent to the date of the payment, gift, or delivery, and beoomes bankrupt within three months after that date, and the ooart is of opinion that the payment, gift, or delivery was voluntarily made by the debtor with a view of giving the creditor an undue preference over other creditors, the oonrt may deolare the payment, gift, or delivery to be void aa against the trustee in the bankruptcy.
"(2.) If a debtor pays any money or delivers any property to a oreditor who has presented a bankruptcy petition against him, and within twentyeight days after the payment or delivery, another bankruptcy petition is presented against the debtor, and he is adjudicated bankrupt thereon, the pivment or delivery sball be void againat the trustee in the bankruptcy."
With regard to the omission from sub-clause 1 of the words before quoted with which section 92 of the present Act concludes, it certainly is a difficult thing to prove that a payee or incumbrancer has not 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 other hand, it would be very hard that a person receiving payment of his debt in perfect good faith (as was the case in Butcher v. Stead) should be condemned by the law as a wrongdoer, and compelled to repay what he may have received and be also liable to an action and all the costs thereof. That would be going from one extreme to the other, and there ought, we think, to be tome protection given to such a person especially as to costs. This sub-clause to some extent seems to contemplate something of the kind by providing that " the court" shall be the tribunal to try the question, thus, as we take it, precluding the trustee
from bringing an action. We think it might go a little further and provide that where the court should be of opinion that the purohnser, payee, or incumbrancer, has received his property, payment, or security in good faith and for valuable consideration he shall not be mulcted in the trustee's costs of the proceedings to recover same. Of course we only mean as to the costs in the court of first instance. If such a person should choose to appeal, then we would leave him to do so in the ordinary woy, and under the ordinary risk as to the costs of such appeal.
When would a person " bec'ome bankrupt " within the meaning of this clause P The same expression is used in section 92 of the present Act. We believe the better opinion is that a person "becomes bankrupt" on his committing an act of bankruptcy to which a trustee's title would relate back under a subsequent adjudication by virtue of section 11; but we are not aware that this has been expressly decided, and, certainly, the point is open to considerable doubt. If this should be the correct interpretation of the term, we thyik it might equitably be altered by extending the time to six months and providing that such time should date from the actual adjudication, or at least from the presentation of the petition upon which adjudication is made.
Lastly, we would call attention to the complete alteration of the wording of this clause from section 92 of the present Act. We think it would be much safer if the wording of the section were more closely followed, seeing that the only changes apparently contemplated in the law are the introduction of "the court" to decide as to the intention of the person making the preference, and the omission of the saving clause at the end.
Sub-clause 2.—Seotion 71 of the Bankrupt Law Consolidation Act, 1849, made such a payment or delivery of property an act of bankruptcy, but that was entirely repealed by the Act of 1869 aud no similar provision re-enacted. This would not operate to the extent that that section did, and it seems to us that it is scarcely necessary, haviug regard to sections 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, subclause (e.), and we doubt very much the policy of the proposal in this respect.
The sections of the Act of 1869 relating to the disclaimer by trustees of onerous property (viz., sections 23 and 24) have given rise to a considerable amount of litigation, as a result of which the general opinion is that those sections are very unsatisfactory in mauy respects. With regard to the effect of a disclaimer of a lease upon a sub-lessee, the Court of Appeal were, in Ex parte Walton, Re Levy (L. R. 17 Ch. D. 746), compelled to some extent to do violence to the wording of section 23 in order to make common sense of it, and it is to be regretted that the court could not see its way to do a little more violence to it in regard to the effect of a disclaimer upon fixtures. The next clause of the Government Bill (clause 65) is an attempt to grapple with the difficulties of the question and the evils of the present law. The clause is rather long, but our remarks upon it will be better comprehended by printing it at length, so that it may be compared with the sections of the present Act, the place of which it is designed to take, and we accordingly do so :—
"Clause 65.—(L) Where any part of the property consists of land of any tenure burdened with onerous oovenants, of shares or stook in companies, of unprofitable oontraots, or of any other property that is unsaleable, or not readily saleable, by reason of its binding the possessor thereof to the performance of any onerous act, or to the payment of any sum of money, the trustee, notwithstanding that he has endeavoured to sell or has taken possession of the property, or exeroised any aot of ownership in relation thereto, but Bubjeot to the provisions of this seotion, may, by writing signed by him, disclaim the property.
"(2.) On the exeoution of the disclaimer the property disclaimed— "(a.) if a oontraot, shall be deemed to have determined at the date of the order of adjudication, so far as regards the interest of the bankrupt therein, and the liability of himself and his property and of the trustee thereunder; and
"(6.) if a lease, shall be deemed to have determined at the same date, so far as regards the interest of the bankrupt therein, and the liability of himself and his property and the trustee to the performance of the oovenants and conditions thereof; and
"(e.) if shares or stook in a company, shall be deemed to have been forfeited at the same date ; and
"(d.) whatever be its nature, shall (unless the oonrt otherwise order) pass to the person (if any) entitled thereto on the determination of the estate or interest of the bankrupt therein, but in no case shall any estate or interest or liability therein or thereunder remain in the bankrupt.
"(3.) The disclaimer shall not prejudice any act previously done in good faith by the trustee in reference to the disclaimed property.
"(4.) The trustee shall not be entitled to disclaim any property in pursuance of this section in any rase where an application in writing has been made to the trustee by any person interested in the property requiring him to decide whether he will disclaim or not, and the trustee has for a period of twoitycight days after the receipt of the application, or such extended period as may be allowed by the court, declined or neglected to give notice whether he disclaims the property or not.
"(5.) In the case of a contract, if the trustee, after sach application as 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 the expense of the estate.
"(6.) A trustee shall not be entitled to disclaim a lease without the leave of the eoart.
"(7.) The court mar, on application by any person claiming any interest in any disclaimed leasehold property, make an order for payment, either by the trustee personally or ont of the bankrupt's property, of such sum as it thinks 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 knowledge of tbe trustee, and before the date of the disclaimer.
"(8.) The court may, on application by any person claiming any interest in any disclaimed property, and on hearing such persons as it thinks fit, make an order for tbe vesting of the property in or delivery thereof (with any deeds or documents relating thereto) to any person entitled thereto, or a trustee for him, and on such terms as the court thinks just; and on any such vesting order being made, the property comprised therein shall vest accordingly in the person therein named in tbat behalf without any conveyance or assignment for the purpose, and any such vesting order shall not be liable to stamp duty.
"(9.) Any person injured by the operation of a disclaimer under this section shall be deemed to be a creditor of the bank'upt to the extent of the injury, and may accordingly prove the same as a debt under the bankruptcy petition."
Sab-clause 1 is practically the same as the first portion of section 23. The wording is slightly altered in two or three places, and, we think, for the better, but the effect appears to be the same.
Sub-clause 2 it also an elaboration (obviously with special reference to the case of Ex parte Walton) of the next portion of section 23. With regard to paragraph (b.) thereof, we are strongly of opinion that it ought to be altered so as not to act as a forfeiture by the trustee of any tenaut's fixtures upon the leasehold premises. The law as laid down by tbe Court of Appeal in the cases of Ex parte Stephens, Re LavUs (26 W. R. 136, L. R. 7 Ch. D. 127), Ex parte Brooke, Re Roberts (27 W. R. 255, L. R. 10 Ch. D. 100), and Ex parte Olegg, Be Latham (30 W. R. 144), however logically correct, is nevertheless most unsatisfactory. We observe that the word " determined" is substituted in the clau.se for tho word "surrendered" in the section, but we opine this will not make any difference upon the point in question, though it would certainly re-open it for argument on the ground that a tenant has by law a reasonable time after the determination of his tenancy allowed him to remove his fixtures. Now, why should the lessor be made a present by law of fixtures which, in all moral and equitable fairness, belong to the creditors P The present law has acted most harshly in many cases, particularly in Lancashire and Yorkshire, where mills have been held on lease, the machinery therein belonging to the tenant, and of necessity for the purpose of working being fixed to the floors or walls of the building. This machinery in many of such cases has constituted the most valuable asset of the debtor's estate, and yet because the trustee has been compelled to disclaim a burdensome lease he has only been able to do so at the expense of so valuable an asset. We have heard of cases where trustees after realizing the tenants' fixtures have assigned the leases to paupers, in order to get rid of the covenants therein and in consequence of the effect which a disclaimer would have upon the fixtures. In other cases too, under proceedings for liquidation, the creditors have adjourned the first meeting and appointment of trustee, so that the fixtures might be severed before the appointment of a trustee (the equivalent to "the date of the order of adjudication "), and thus bo prevented from passing to the lessor on the trustee afterwards disclaiming the lease. The credit of this invention must, we believe, be given to Mr. Daniel, Q.C., the judge of the Bradford County Court. But even if practicable (and they are not always so), why should a trustee bo compelled to resort to such subterfuges in order to save for the creditors what, in all moral fairness, 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. Sub-clause 3 might nt first sight appear to have been inserted with this object, but we do not think it could possibly have that effect, though we confess we cannot very well see with what other object it has been inserted, aa it is entirely new.
As to paragraph (</.), in conjunction with sub-clause 8; will these effectually provide for the case of a freehold subject to a perpetual reutcharge, as was the case in Be Beardsworth and Moore's Contracts (28 W. R. 485) P We are inclined to think tbat they will, and, if so, that will be a provision which is decidedly required.
Sub-clause 4 is practically the same aa section 24 of the present Act. In Ex parte Davits, Be Sneezum (25 W. R. 49, L. R. 3 Ch. D. 463), it Was held that where a trustee in bankruptcy, after having been served with a notice nndcr that section, instead of disclaiming a contract entered into by the bankrupt, continued to perform it, but subsequently abandoned it, the only remedy open to the other contracting party in respect of such abandonment was by proof for damages against the bankrupt's estate. Sub-clause 5 (which is entirely new) would appear, therefore, to have been inserted with a view to meeting a similar case. Now, we do not think that it would sufficiently meet such a case. Suppose there is no estate, it having been exhausted by the trustee in carrying on a contract (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 would appear not from the concluding words of the sub-clause, but, on the elutr band, fliey might be construed to mean only that tbi trustee,
being personally liable on the contract, would be entitled to be indemnified out of the estate. Whatever be the intention, it ought, at any rate, to be more clearly expressed to avoid litigation on the point.
Sub-clause 6 would enact in effect rule 28 of the Bankruptcy Rules', 1871. In Bsed v. Harvey (28 W. R. 423, L. R. 5 Q. B. D. 184) the Queen's Bench Division held that the rule only regulated the procedure, and that a disclaimer of a leasehold interest by a trustee was operative, though no application for leave to disclaim had been made to the court. The effect of providing by enactment for the leave of the court to disclaim being obtained would be to reverse that decision.
The effect of the clause generally (particularly sub-clauses 7 and 8) upon sub-lessees and mortgagees has been so fully discussed in these columns (25 Solicitors' Journal, pp. 469, 486, and 505), that we do not think we can usefully add anything thereto, agreeing as we cordially do (if we may presume to say so) with the comments there contained.
Sub-clause 9 is practically the same as the concluding paragraph of section 23 of the present Act.
Clause 66 proposes an amendment iu section 1 of the Absconding Debtors Act, 1870, necessary in consequence of the proposed abolition of debtors' summonses aud substitution of bankruptcy notices under clause 5, sub-clause («.), and clause 6.
Clauso 67 proposes another innovation in the law of bankruptcy, with regard to married women. The clause is as follows : —
"Clause 67.—A married woman who has c mtracted any debts or entered into any engagements, otherwise than as the agent of her husband or some other person, shall be liable, in respect of her separate estate, to all the provisions of the principal Act and this Act, and shall be entitled, in respect of her debts, to the benefit of all the provisions of the principal Aot and this Act."
Uaving regard to the great changes that have been made by recent legislation in the status of a married woman with respect to her separate estate, it appears only reasonable that some provision should be made for the purpose of obtaining an equitable distribution thereof amongst her creditors, in case it should not be sufficient to pay them all in full. But is it intended by this clause that a married woman having separate estate, who contracts debts, shall personally be subject to the baukruptcy laws or only to the extent of having her estate administered thereunder P We should presume that it is not intended to place her personally under any greater liability than the present law places her under, but the clause as drawn is anything but clear. In what way will she "be entitled in respect of her debts to the benefit of all the provisions of the Acts " P Will she be required to furnish accounts, pass an examination thereon, and apply for a discharge like any ordinary bankrupt? The clause ought, we think, to make special provisions in respect of these matters, for it Is obvious that a very different course of procedure will require to be adopted with respect to a married woman from an ordinary bankrupt. Then, again, how would the clause affect married women now trading on their separate acoouut (as by custom of the city of London) and liable to be made bankrupt under the present law?
Clauses 63 to 71 are included under the bead " Transitory Provisions." The first three make provision for the transfer to the official receiver (instead of the registrar) of the estate of a liquidating debtor on a vacancy in the office of trustee, and of the outstanding property on the close of a bankruptcy or liquidation, and for the transfer of estates from the registrars of the London Bankruptcy Court to such official receiver aa shall be appointed by the Board of Trade for that purpose. Clause 71 provides for the vesting in the Crown of unclaimed funds or dividends in the hands of any trustee or other person under the Acts of 1844, 1849, 1861, and 1869, and makes other provisions for the collection thereof, and for the audit of the accounts of sach persons, upon the application of any person interested, with the limit, however (sub-clause 4), " that the audit shall not extend beyond six years before the passing of this Act, and shall not disturb any audit properly held before the date of such application."
Clause 72 makes provision for the repeal of the enactments mentioned in the third schedule. Sub-clause 2 provides that such repeal shall not affect, inter alia "(6.), any right or privilege acquired, or duty imposed, or liability or disqualification incurred under any enactment so repealed," and sub-clause 3 further provides for the provisions of the Act of 1869 to continue except as provided by the Bill. We have remarked upon clause 35 the absence of any provision in the Bill for the discharge of bankrupts under the present Act who have not obtained their discharge, but who would be entitled thereto if they came within the provisions of this Bill; and we would suggest the modification of this sub-clause as well as of clause 35 to meet such cases.
Having conoluded our review of the Government proposals for the reform of the law of bankruptcy as contained in the Bill of last sesrion, we propose hereafter to call attention to a number of points which we think ought to be provided for in any amendment of the law at the present time, but which have not been touched upon in any way by the Government Bill.
Mr. P. Bnrrowes Starkey, who for many years was well known on Parliamentary Committees, ditd on Wednesday, at his residence in Hanover
THE CONVEYANCING ACT.
Thb Conveyancing And Law or Property Act, 1881. And Tbb Vendor And Purchaser Act, 1874. "with Notes. By W. Manning Harris, and Thomas Clarkson, Barristers-at-Law. Stevens & Sons. This edition ot the Act is, like the last one noticed by us, printed in a handsome and convenient form. The index also is copious and good. But the notes are sometimes meagre, and fail to add much to the information already before the public. For example, a large part of the commentary on section 5 consists of the following observation: "Payment into court under this section will pro tanto exonerate the purchaser (see section 69 (2) infra); and the declaration of the court under this sub-section will discharge the land from the incumbrance" (p. 19). When an edition of the Act appeared a few weeks after it had become 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 so far that theao faint echoes of the text might well be omitted. We are surprised, after what has appeared in our columns, to find that the note upon section 13 begins with the following expression of opinion :—" It is not clear from the languige of this subsection whether the 'reversion' intended is the reversion which will be immediately expectant on the lease to be granted, or is the reversion immediately expectant on the leasehold interest, out of which the new lease is to be derived" (p. 51). Whether the strictures which have been passed upon the language of section 17 are well founded, we will not say ; but we can confidently say that the language in question requires explanation ; and we find little to help our apprehension in the following comment:—" By virtue of this section the above rule" [as to cousolidation] "will not apply so as to prevent the redemption by itself of a mortgage made after December 31, 1881, without a stipulation in the mortgage deeds or one of them for that purpose" (p. 59). We should have been glad to know what view of the effect of the words which we have placed in italios is taken by the authors. This general absence of explanatory matter is necessarily in our eyes a great defeat in a commentary upon au Act which, in our opinion, so emphatically stands in need of explanation; and is not sufficiently compensated by remarks which, in themselves useful and meritorious, serve only for the purpose of collateral illustration. A commentary upon this Aot is likely to be useful in practice only in proportion as it exhibits a dear Judgment in selecting one view out of the many possible, and in giving reason to suppose that the view selected will ultimately prevail in practice,
THE SOLICITORS' REMUNERATION ACT.
[To the Editor of the Solicitors' Journal.']
Sir,—It appears in your issue of the 28th of January that the Council of the Incorporated Law Society have received the draft of the general order to be made under the Solicitors' Remuneration Act, 1881. This is inexact.
I, as president of this society, and as such, a member of the tribunal appointed by the Aot, have, with the assistance of several members of the council and delegates from the associated provincial societies, drafted a scale, which has been sent to the Lord Chancellor, Lord Coleridge, the 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 their consideration.
As it would seem from your article that the month, during the currency of which "observations and suggestions" are to be made to the tribunal, has begun to run, I am desirous of correcting the misapprehension.
The month will not begin to run until a draft order has been sent by the tribunal to the Incorporated Law Society.
C. C. Drccb, President. Incorporated Law Society, Chancery-lane, January 30.
AUTHORITY TO RECEIVE PURCHASE MONEY. [To the Editor of the Solicitort' Journal.] Sir,—Section 56 of the Conveyancing Aot seems open to more objections than you notice.
The section Bays nothing as to any relationship of solicitor and client, it is merely " a solicitor." Suppose, tbeii, a sale by three vendors seized of undivided thirds as tenants in common, and each employing separate solicitors. 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, when, for many reasons, it may be most undesirable he should do 10. Quixre, in such a case would notice to the purchaser be binding P IV, Llncoln's-inn.flelds, London, W.C., Jan. 38. Wit. Mavsb,
[To the Editor of the Solicitors' Journal.] Sir,—You notice again in your issue of to-day the objection which has been urged against the 56th section of the Conveyancing Act. Without in any way questioning the correctness of your interpretation of that section, I would merely suggest that a solicitor, giving a cheque instead of cash, runs no greater risk by trusting to the authority given by the statute than he does by acting on the written authority usually given. That authority, so far as ray experience goes, directs the payment of the "purchase-money " to the solicitor, and I have never known the purchaser's solicitor refuse to pay by cheque, because the vendor's solicitor was not expressly authorised toaooept payment in that way.
23, Ely-place, London, E.C., Jan. 28. Alfred E. Jakes.
[Possibly so, but does our correspondent see no difference between the construction of an authority given by the vendor himself to the purchaser to pay to Mr. A. B. and an authority conferred by statute on the purchaser to pay to " a solicitor" producing the deed f—Ed. 8. J.]
SALES IN LOTS.—A SUGGESTION.
Sir,—It is a common practice in this country to offer an estate for sale, first in one lot, and if not sold In one lot, then in several lots. I understand that in France an opposite course Is followed. There it appears to be UBual to put up an estate in the first instance in several lots, the highest bidder for each lot being declared the purchaser, subject to the estate not being afterwards sold as a whole. After all the lots are disposed of, the estate is put up in one lot, 8t on npset price, somewhat in excess of the aggregate amount of the sums bid for the severnl lots, and if Hot sold at that price, or an advance on it, the former biddings for the separata lots hold good.
It is obvious that this method of sale offers some advantage to the vendor, because under it he is sure of obtaining the greatest price that any person or persons will give for the estate, together or separately, while under the English plan there is always the chance that an estate sold in one lot would have realized more if sold in several lots.
Whether, however, the French plan could be profitably introduced into England is more than I can say, but sales of estates rather hang on hand at the present time, and some of your readers may like to try a novelty.
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 whole costs, but in any case £2 does seem indeed a email charge for a loan of, say, £100. It should be £3 at the least, exclusive of disbursements. These small loans are of frequent occurrence, and practitioners who have for their clients people doing business in a email way, require that their remuneration should be very carefully weighed before being; finally adjusted, much more so thau the man who acts for the more wealthy members of society dealing in large transactions; and I trust that the Incorporated Law Society will remember, in considering this matter, that they are fixing the maximum, not the minimum of costs, and that £1 more or less on a transaction may make a great difference to the more humble members of tua profession, who perhaps gain their living only by small matters. B. N. R.
BILLS OF SALE.
Sir,—The lender of the money mentioned in the letter of your correspondent, "A Country Solicitor," must be an exceptionally honest man, if, under the circumstances therein stated, he would admit that his principal object in lending the money and taking a bill of sole was to protect the furniture for the benefit of the grantor. The advance of 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 contemplated (for the consequences of all such proceedings must be presumed to be contemplated), the goods would be protected from being; seized under an execution, would not, I think, affect its validity. That is, of course, presuming the grantee had no notice of any act of bankruptcy previously committed by the grantor, It is in fact a consequence contemplated on the giving of every bill ot sale, otherwise the security would be valueless. H. P. J.
THE REPEAL OF LORD CRANWORTH'S ACT. [To the Editor of the Solicitors' Journal.] Sir,—Suppose a plain man—a fairly intelligent layman, let us say— 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 repealed, the saving clause in section 71 of the new Act is sufficient to keep alive powers upon which many mortgagees have silently relied; suppose him to read the preamble, "it is expedient that certain powers and provisions which it is now usual to insert in . . . mortgages . . . and other instruments, should be made incident to the estates of the persons interested, so as to dispense with the necessity of inserting the same in terms in every such instrument,'' and the language of the 11th section, "shall . . . have the following powers" [sale, insurance, and appointing a receiver] " to the same extent (but no more) as if they had been in terms conferred by the person creating the charge"; and suppose him to be told (and truly told) that a deed framed on the faith of these representations had the same " operation" as if the powers and provisions had been expressly set out therein—inserted in invisible ink—but that it is now gravely contended that when the new Act says that " the repeal . . . shall not affect the validity ... or any operation, effect, or consequence of any instrument executed or made . . , before the commencement of this Act," it uses language perilously inadequate to accomplish tho purpose; that the powers are not implied in the deed; that the source of the powers is dried up; and that if the position of these mortgagees is not truly pitiable and alarming, the desiderated judicial interpretation will only be contrived by a process of painful and undignified wriggling and squeezing; I think he would be ready to exclaim with one of the characters in Much Ado about Nothing, "Sure, sure, such carping is not commendable."
On the question whether there are sufficient technical grounds for challenging the verdict of common 9ense, I only add this :—Part 4 of Lord Cranworth's Act is not repealed. Part 4 (section 32) provided, and provides, that where there is no prohibitory declaration in the deed, the powers, &c, shall take effect only subject to such variations or limitations as may be contained in it.
A class of instruments operated in a certain manner by virtue of this unrepealed section; they therefore continue so to operate unless there is reason to the contrary ; the only reason to the contrary is subject to the objection that, whatever "operation" they had, is continued to them.
February 1. H.
[It may be quite possible that our correspondent's "intelligent layman " would laugh at us for thinking that important Acts of Parliament ought to be expressed with the greatest possible clearness, and drafted with the greatest possible accuracy. We must decline to alter our opinion in deference to such an authority; and our correspondent ia welcome to the pleasure (if it gives him any) of sharing the critical habits of intelligent laymen rather than those of lawyers. It is difficult to say what the last paragraphs of his letter mean; unless they mean that, by virtue of part 4 of Lord Cranworth's Act, parts 2 and 3 continue still practically unrepealed; a proposition upon which, both in itself and its con sequences, we recommend him to meditate further. This view, if adopted, would convict the Conveyancing Act of an oversight much more flagrant than that from which our correspondent seeks to defend it. What will be the judgment of the profession, if the Act, while making a great parade of repealing one system and substituting another in its place, shall appear to have left the original system unrepealed ?— Ed. S. J.~\
THE CONVEYANCING ACT, 1881. [To the Editor of the Solicitors' Journal.] Sir,—I do not know whether the attention of your readers has been called to the difficulties which may arise from sections 5 and 17 of this Act.
Under section 5 (as you have pointed out) it appears that a mortgagor may sell the mortgaged property behind the back of the mortgagee. This, however, may place the purchaser's solicitor in a very awkward position, for if, in some other mortgage deed, between the mortgagor snd mortgagee, a clause is inserted negativing the operation of section 17 (iub-iection 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 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 of all mortgages between those parties in order to ascertain whether any such clause had been inserted. Herbert Rookb Oldfield.
14, Gray's-inn-square, Jan. 27.
THE ORDER FOR SOLICITORS'
Tai following resolutions were passed at a meeting of the Associated
dated 12th of December, 1881, submitted for their consideration by the Committee of the Council of the Incorporated Law Society !—
1. That as recommended in the report of the committee of the Incorporated Law Society, of June, 1880, the Law Society's 8cale of 1880 should, as regards sales, mortgages, and leases, form part of any proposal to be made to the authority constituted under the Solicitors' Remuneration Act, with such moderate alterations in certain items as may be thought desirable to secure its adoption.
2. That in cases of settlements of money, the ad valorem commission at the same rate as on a purchase should apply. In cases of settlements of land the ad valorem principle is inapplicable.
3. That the remuneration to solicitors under the above scale should not include disbursements properly and reasonably made, but fees to counsel are only to be charged where the difficulty or importance of the case renders such fees reasonably necessary.
4. That as regards instructions for, and drawing and perusing deeds, wills, and other documents not included in the foregoing scale, such fees shall be allowed, as having regard to the position of the party on whose beball the document is prepared or perused, the amount of property to Which it relates, the care, skill, labour, and responsibility involved, the importance of the document, and tho papers to be perused, may be fair and reasonable.
5. That in dealing with any documents, if the length of the document is taken into consideration, the taxing master is not to be bound by the present charge of Is. a folio for drawing, which is to be held to bo inadequate payment for any special document.
6. That the basis of any charges for solicitor's time be 15s. per hour, equal to £5 5s. per day of seven hours. That the charge for business taking a solicitor from his office, should be £5 5s. per day, the time reasonably occupied in travelling to be charged additionally at the same rate.
As To Abstracts Of Title.
7. Drawing and copying each brief sheet of eight folios, 10s.
8. Such a fee as having regard to the place and circumstances at or in which the attendance takes place, the nature and importance of the business, the amount of property involved, the nature and importance of the papers and documents required to be referred to before and during the attendance, and the skill and knowledge required may be fair aud reasonable:—In ordinary cases, 10s.
9. That there should be a uniform scale for sales and purchases, and for mortgages, and that the following should be such scale—viz., up to £200, 3 per cent.; from £200 to £1,000, 2 per cent.; from £1,000 to £5,000, 1 per cent.; above £5,000, 10s. per cent.
In pursuance of arrangements made at the above meeting, a general meeting of representatives of the Council of the Incorporated Law Society, and of the Liverpool, Manchester, Bristol, aud Leeds Societies was held on the 30th of December, when the following modifications of the proposed general order were agreed to :—
(1.) In paragraph 2 (a), part 1, £1,000 was substituted for £500, with a provision for a minimum fee of £4.
(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 oent. on the rent reserved up to and including £100, with a minimum fee of £5; the sum of five per cent, on the further rent reserved from £100 to £200; and the sum of two-and-a-half per cent, on the further rent reserved abovo £200."
In the last item of the seoond schedule, seven hours was substituted for eight hours.
The remaining suggestions of the meetings of the 15th and 16th of December were considered, but no determination was arrived at upon them.
It was considered that these points might properly, and would be more conveniently, left in the hands of the London and Provincial Presidents.
CASES OF THE WEEK.
Practice—Oudbs To Vaky Chief Clerk's Certificate And Strike Out Evidence.—In a cat* of Fox v. Bearbloch, before the Court of Appeal on the 27 th nit, the question arose whether, wbensn order is nude to vary a chief clerk's certificate, and to strike out some of the evidence entered therein as the basis of the finding, it ia in accordance with the practice to make an aotual physical alteration in the original oert fioate .by substituting in it the finding as directed to be varied for the original finding, and by erasing from it tbe evidence directed to be struck out. The action was brought by the executor of a testatrix for the administration of her real and personal estate. The testatrix had died intestate, by reason of the death before her ol her sole devisee and legatee. The defendant, who was the only daughter of a brother of the testatrix, claimed to be her heiress-at-law and sole next of kin. The Attorney-General on behalf of the Crown alleged that the testatrix had no heir and no next of kin living at tbe time of her death, on the ground that her father had nevsr been legally married to the lady with whom he had lived as his wife, and consequently that all his children were illegitimate. The chief clerk by his certificate found that this was so, and among the evidence entered in the certificate in support of this finding was a deposition of the bursar of King's College, Cambridge, of which college the father of the testatrix had been a fellow, to which deposition an entry in a book belonging to the college, called the Liber Protoeollorum, was made an exhibit. Upon the hearing of the action on further consideration, and on a motion by the defendant to vary the chief clerk's certificate, Fry, J., held (29 W. R. 661, L. R. 17 Cb. D. 429) that the entry in the Liber Protoeollorum was not admissible in evidence. And he ordered ihat the certificate should be varied by stating, in lien of the chief clerk's finding, that the defendant was the heiress-at-law and the sole next of kin of the testatrix at the time of her death. It was aho ordered that the entry in the Liber Protoeollorum, entered in the certificate as part of the evidence, "be struck out from the certificate as being inadmissible in evidence." After the drawing np of this order the solicitors who acted for the plaintiff and the defendant requested the chief clerk to make aotual physical alteratioDR 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. This the chief clerk refused to do, on the ground that it would be contrary to the ordinary practice. The plaintiff then took out a summon*, asking that the chief clerk, or one of the masters of the High Couit, or other proper officer, might be ordered to strike out Irom the certificate such words as by the order on further consideration were directed so be struck out, or that such further or other order might He made as would give effect to the direction contained in that order. Fry, J. (30 W. R. 119), refused to accede to this application. He said that it was contrary to the practice to make any alterations in existing documents, and that the meaning of the order was that the certificate should be read as if the words in question were struck out of it. When the ease came before the Court of Appeal (jksskl, M.R., and Brett and Iiolkek, L.JJ.), there appeared to be some difference of opinion between their lordships. It beoame, however, unnecessary actually to decide the question whether the vitw of the practice taken by Fry, J., was right or not, for the appellant's counsel said that they would be content with an order to t»ke the deposition of the bursar of King's College off the file. And, there being no opposition to thi», the court held that the appellant was entitled to such an order, which was accordingly made, conditionally npon the Attorney-General raising no objection to it within fourteen dais after notice served on him. Jesskl, M.R., bowever, in the course of the argument expressed a strong opinion that the practice had been correctly stated by Fry, J. He said that the practice was the same as when an order was made by the Court of Appeal to vary a decree or judgment of the court of first instance. In Buch a case the original decree or judgment was never actually altered. If this was to be done, there would be a serious addition to the costs of an Bction. Solicitors would be ent:tled to charge for additional attendances.—Solicitors, Crosse $ Sons,
Lunacy—Jurisdiction — Supersedeas — Finding By Irish Court— Lunacy Regulation Act, 1853, s. 52.—In a case of In re Talbot, on the 28th ult., an application was made to the Court of Lunacy (jesskl, M. R., and Brktt and Holker, L.JJ.) for a supersedeas of certain proceedings in England in respect of the property in England of a lady who had been found a lunatic by the Court of Lunacy in Ireland. After the finding by the Irish court, a transcript of the proceedings there was transmitted to the English court, and entered of record there, and directions as to the application of the lunatic's property in England were then given by the English couit. The lady afterwards presented a petition to the English court, alleging that the finding of the Irish court had been improperly obtained behind her back, and that she was, in fact, of sound mind, and capable of managing her affaire. And she asked that an inquiry might be ordered to take place before a jury as to her state of mind, or that she might be at liberty to attend before the English coort 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 supersedeas transmitted to the Irish court, and that the transcript of the Irish proceedings transmitted to England might be no longer acted on. Medical evidence as to the petitioner's state of mind was tendered, but the court refused to admit it. Jessel, M.R., said that the court had no power now to order the question of sanity to be tried by jury. The meaning of section 52 of the Act was, that the English court might act upon the decision of the Irish court upon having a transcript of the record of the proceedings forwarded to this country and entered of record without further inqu'ry, just as if the proceedings had been originally taken in this country. That bing so, on what principle did this court act in deciding whether or not it would follow out tbe decision of t he Irish court? As a general 1 ule the English court would assume the propriety of the Irish proceedings, though there n-ight be some extraordinary case, as of fraud or of accident—none such, however, bad ever come within his knowledge—in which the English court might say that it was not a case for acting on the transcript sent by the Irish court; at all events, until an opportunity bad been afforded for setting the matter right. In Ireland, which was not a foreign country, the Lord Chancellor acted under tbe sign manual of the Queen in the same way as the Lord Chancellor did in this country. Tbe proceedings were the same, and practically there was the same jurisdiction there as here. Acting, therefore, under a similar jurisdiction, the Lord Chancellor of Ireland had found tbe petitioner to be lunatic, and, as a matter of course, this court wonld act on the transcript sent over of tbe proceedings in Ireland. But it was said that there had been a miscarriage in those proceedings, and that the petitioner had been found lunatic upon insufficient inquiry, that she bad no notice of the proceedings, and that a deception had been practised on the Lord Chancellor of Ireland, If this were so the proper course would be to apply iu Trelmd to set aside the proceedings, and no doubt as good justice might bo obtained from the Irish Lord Chanoellor as in England. Assume that the applioant failed in setting aside the finding on the gronnd of irregularity in the proceedings, but coula prove that she was not at present a lunatic, the could apply to the Lord
Chancellor in Iieland, just as well as in this country, for a supersedeas, and that supersedeas, when obtained, would be transmitted here, and would stop all proceedings with regard to her English property. The Irish court, therefore, and not this court, was the proper/arum. It would be shocking to contemplate that a different result would be obtained in Ireland from that which would be obtained here. There was no more reason, therefore, why this court should attempt to interfere with the Irish jurisdiction than there wonld be to expect that the courts there would interfere with tbe decisions of our courts. See what tbe result wonld be if a different course were allowed. The petitioner would still be a lunatic in Ireland, but not in England, and her property in Ireland would still be subjict to the Irish jurisdiction. Any interference by this court would not conclude the question, but must be partial and imperfect. Beett, L.J., and Holker, L.J., concurred.—Solicitors, Johnsons, Upton, Budd, cfc Athey; Boltons, Ribbins d; Bask.
Lunacy—Allowance—Power Of Court.—In a case of In re Weld, before the Conrt of Lunaoy (jessel, M.R., and Brett and Holker, L.JJ.) on the 30th ult., a question arose as to the power of a person to whom an allowance is made ont of tbe property of a jnnatio to deal with the allowance by way of mortgage or otherwise. An order was made on tbe 2nd of August, 1879, that the brother of the lunatio should be at liberty to retain for his own occupation and use, and tbe occupation and nse of his unmarried sisters, the mansion house and grounds, of which tbe lnnatio was tenant for life, and the furniture therein, and that tbe sum of £4,000 a year should be allowed to tbe brother out of tbe inoome of tbe lunatio's estate, as from the 8th of Deoember, 1877, for the brother's expenses in reference to the mansion house and grounds. The income of the property was not at first sufficient to pay tbe allowanoe in fall, and there were arrears to a considerable amount nnpaid. The brother exeonted a mortgage of the arrears to seoure an advanoe made to him by the mortgagee. There being afterwards funds in hand applicable to paying the arrears, tbe committee of the estate, who had received notice of the mortgage, and also of certain debts and liabilities inonrred by the brother, which it was alleged ought to have been paid and satisfied by him ont of the allowance, petitioned tbe oonrt for directions as to the application of the funds in his bands applicable to payment of the arrears, having regard to the olaims of which he had received notioe. Tbe brother bad become a bankrupt. The mortgagee also presented a petition, asking that be might be at liberty to attend tbe proceedings in the lunacy, so far as they related to the payment of the arrears of the allowance, and to make all such applications as he might be advised for the purpose of obtaining payment of bis mortgage debt out of the arrears. On this petition an order was made that no payment should be made ont of the arrears to tbe bankrupt or any person claiming through bim, without notioe to the mortgagee. Some proceedings afterwards took place before the master. The petition of the committee oame on for hearing, notioe being given to tbe mortgagee. Tbe Court said that when an allowance ia made in this way in a lunacy for a specified purpose, the person who is to receive it cannot by any dealing with it by way of mortgage or otherwise, nor can his trustee in bankruptcy, in any way fetter the power of the court over it. He has in fact no right of property in it, but tbe court has aa absolute power to give or withhold tbe payment aa it pleases. And tha court referred it to the master to ascertain whioh of tbe debts claimed were inonrred for tbe purpose of keeping up the establishment at the mansion house while it was occupied by the bankrupt and his sisters in pursuance of the order of the court, having regard to the amount of the allowance.—Solicitors, Palmer, Eland, $ Neitleship; O. S. E. Brandon.
Company—Windino Up—Forfeiture Op Lease—Leave To Landlord To Resume Possession—Jurisdiction On Summons—Companies Act, 1862, s. 163. —In a case of In re The Wetley Brick and Pottery Company, before the Conrt of Appeal on the 25th ult., the question was raised whether the court has jurisdiction on a summons in the winding up of a company to order the liquidator to deliver possession to the company's lessor of property of which the eompany are lessees, the leass bavin?, by virtue of a proviso contained in it, become forfeited. In this case the lease to the company provided that, if the rent should be unpaid for thirty days, or in case the lessees should be wtund up voluntarily, or by compulsion, or otherwise under the provisions of any Act of Parliament, it should be lawful for the lessor to re-enter. The rent b ing in arrear, the lessor, after the making of a winding-up order, took ont a summons in the winding up, asking that, in default of payment of the rent within a time to be limited, he might be at liberty to re-enter on the property. Hall, V.C., held that the order ought not to be made on summons, bat that the lessor ought to bring an action to recover the land. The Conrt of Appeal (jessel, M.R., and Brett and Holker, L.JJ.) reversed this decision, and made an order that, if the rent in arrear was not paid witbin a month, the liquidator should give up possession to the lessor. Jesskl, M.U., said there was no reason why the lessor should be compelled to bring an action. He could only be kept out of possession by an unlawful act, It was not right, in a case where there was no defence to an action, to compel tbe lessor to litigate the question. The right oonrse was for the court to order the liquidator, who was its own officer, to give the lessor his legal right. It would be a cruel course to compel him to bring an action which would cause a great waste of time and money. The duty of the liquidator was to give up possession to the lessor with the sanction of the court, and it was perfectly plain that he ought to have been ordered to do so in this oase. Brett, L.J., said that section 163 did not apply to tbe oase. The order was required only for tbe purpose of justifying the officer of tha conrt in doiog what he was bound to do according to the terms of the lease, and it ought to have been made as a matter of course, unless same cause to