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case. It was not enough, in our view, to show that the prisoner's conduct was malicious in the sense in which they use the term. SOME POINTS FOR CONSIDERATION AS The Lord Chief Justice says that the prisoner “acte:l' unlawfully
TO THIS YEAR'S BANKRUPTCY BILL. and maliciously,' not that he had any personal malice against the
I. particular individuals injured, but in the sense of doing an unlawful act calculated to injure, and by which others are, in fact, injured. The approaching re-introduction of Mr. Chamberlain’s Bill makes it Just as in the case of a man who unlawfully fires a gun among a desirable to call attention to a number of points which, in our opinion, crowd, it is murder if one of the crowd is thereby killed.” With ought to be provided for in any amendment of the law of bankruptcy great respect to his lordship, the illustration is not appropriate. Government Bankruptcy Bill of last session, and we may also make a few
at the present time, but which were not touched upon in any way in the The degree of probability in such a case makes all the difference. suggestions, additional to those which have appeared in our columns, The ancient doctrine that a man must be taken to intend the upon one or two of the provisions of that Bill. We will deal first with natural result of his acts is good sense if it be confined to results the question of deeds of assignment by traders of all their estate and which are so highly likely to result from the acts as that a person effects for the general benefit of their creditors. must, in common sense, be presumed to contemplate that they will The present law on this point is not proposed to be altered by the Bill follow. But we do not think that the degree of probability that which, by clause 5, sub-clause (a.), provides that it shall constitute an the result would follow was by any means so high in this case as
act of bankruptcy if "the debtor has in England, or elsewhere, made a in the ancient illustration employed by the Chief Justice. The benefit of his creditora generally." This act of bankruptcy is one upon
conveyance or assignment of his property to a trustee or trustees for the doctrine enunciated by him really comes to this-viz., that any which a bankruptcy petition can be presented within six months, and to person doing a wrong act, knowing it to be wrong, of such a which a trustee's title would relate back, if committed within twelve nature as that he ought to have known, if he considered, that injury months before adjudication. We think it would be well to consider a might result to persons therefrom, must, if such injury follows, be little of the history of deeds of assignment in connection with this guilty of inflicting grievous bodily harm on the person injured. provision, going as far back only as the Bankrupt Law Consolidation Act, This seems to us à most sweeping proposition. " A boy makes 1849. By section 68 of that Act it was provided a slide on the pavement. This is, we believe, at any rate
“That if any such trader shall execute any conveyance or assignment by in urban sanitary districts, an unlawful act. It is done deed of all his estate and effects to a trustee or trustees for the benefit of all “ maliciously” in the sense in which the judges in the case
the creditors of such trader, the execution of such deed shall not be deemed
an act of bankraptcy unless a petition for adjudication of bankruptcy be we are discussing appear to have used the term “ maliciously”— filed within three months from the execution thereof, provided such deed shall that is to say, the boy knows it is wrong, because he runs away be executed by every such trustee within fifteen days after the execution when he sees the policeman coming round the corner. An old thereof by the trader, and the execution by the trader and by every such gentleman tumbles down on the slide and breaks his leg, a result trustee be attested by an attorney or solicitor, and notice thereof be given
within one month after the execution thereof by such trader in case such which no one can say is unlikely to bappen, and a result which trader reside in London, or within forty miles thereof, in the London Gazette the boy certainly ought, if he had considered, to have recognized and also in two London daily newspapers, and in case such trader does not reside as not unlikely. That boy, according to the principle applied, is within forty miles of London, then in the London Gazette and in one London guilty of unlawfully and maliciously breaking that old gentleman's daily newspaper and one provincial newspaper published near to such trader's leg. "We cannot ourselves see that our illustration is at all an
residence; and such notice shall contain the date and execution of such deed,
and the name and place of abode respectively of every such trustee and unfair application of the views expressed by their lordships, and attorney or solicitor." yet the result is, to our mind, absurd. It seems to us, looking at the case we are discussing as fairly as
The above section was superseded by sections 192 to 200 of the Act of
1861, and by the present Act all statutory enactments regulating deeds we can, that the act done by the prisoner was a lamentably and of arrangement of any kind between a debtor and his creditors were wickedly reckless practical joke, proceeding, however, rather from a repealed. Now, we would ask, why was section 68 of the Act of 1849 sort of brutish thoughtlessness than from any intention that any superseded (not expressly repealed, let it be borne in mind), by the Act of person should be hurt; but unless the evidence can be fairly said 1861? It could not have been that the Legislature was of opinion that to show that he intended that persons should be injured, we can- such deeds were baneful, otherwise it must be presumed the principle of not see how he can be said to have unlawfully and maliciously the same would not have been extended as it was by that Act. Are we inflicted grievous bodily harm. The words are not “shall un
not right in contending that, on the contrary, deeds of assignment within lawfully and maliciously do any act which causes grievous factory to induce the Legislature to seek to extend the benefits of the
the provisions of section 68 of the Act of 1849 were sufficiently satisbodily harm,” but “ shall unlawfully and maliciously inflict
same to all kinds of arrangements for compromise between a debtor and grievous bodily harm.” We do not think these two expressions his creditors, and that such was the object of the deed provisions of the are by any means equivalent. In order that the act itself shall Act of 1861 ? We think we are, and that by those provisions a mistake be evidence of the intent, it seems to us that a higher and more was made only in carrying the principle too far. But the mistake having obvious probability of the resulting injury must exist than in this been discovered by experience, we are of opinion that a still greater case. It must amount almost to certainty, otherwise the principle mistake was made in 1869, in the contrary direction, by abolishing all enact. of presumed intention would be capable of most dangerously wide trader who has acted fairly and honestly, and to the best of his ability
ments for the regulation and protection of deeds of arrangement. When a application. Many practical jokes of a foolish and blameworthy endeavoured to conduct his business successfully, finds himself in the un. character have led to lamentable consequences in the way of fortunate position of not being able to “make both ends meet,” what injuries, but no one has ever thought of suggesting that they more can he do than give into the hands of his creditors all he possesses brought the perpetrators within the scope of an indictment for for them to make the most thereof at the least possible cost ? And if inflicting grievous bodily harm. We are not arguing the ques. the creditors are satisfied with their debtor's conduct
, why should they tion whether such matters should or should not be punishable. not be able to take from him all he has to give them and make the best Perhaps they ought to be in all cases ; certainly they ought in of it? These are generally tke cases in which, when forced into court some, as, for instance, in the case we are discussing. The question up in the costs of those expensive proceedings. The bills of cost allowed is whether they can properly be brought within the scope of words to receivers in a great many of such cases are simply scandalous, and which seem scarcely to contemplate such an application of their often before the creditors get the estates into their own hands they find meaning
them charged with those costs and practically nothing left for them. This has given rise to a number of persons springing up in all parts of the country styling themselves accountants, who live and fatten on the
plunder they obtain out of these small estates, and the benefit of whose In a case of Vincent v. The Great 1Vestern Railway Company, tried at services, so far as the creditors are concerned, is simply valueless; and Taunton on Saturday last, for damages for loss of a valuable sow, the defen: this practice is, in our opinion, the greatest blot of all upon the present dants had pleaded the following remarkable plea :-“The defendants say that bankruptcy law. But, it may be urged, there is nothing in the present the soffocation and death of the pig were not in any way occasioned by any law to prevent creditors from accepting an assignment from their debtor of unskilfulness, misconduct, or negligence of the defendants or their servants, all his estate and effects in satisfaction of their debts if they are unanimous but were wholly due to the act of God and natural causes-viz., the unusually hot and sultry state of the weather, and the peculiar and inherent tendencies upon the point. That is true only to a limited extent. So long as such and weakness and unhealthiness of the pig itself, and its excessive fatness, and a deed continues to be an act of bankruptcy to which a trustee's title consequent inability to travel safely, or to some or one of such causes, and could under a subsequent a ljudication would relate back, it is clear that no not have been prevented by any amount of foresight or care reasonabiy to be trustee under such a deed could be advised to divide the funds under the expected from the defendants."
deed, and therefore the only way for a trustee to be perfectly safe is to
retain the proceeds of the estate until twelve months have expired, is, therefore, under no common-law liability to the persons who when if no petition be then filed he may, of course, safely divide supplied him with them. The fact that he had the coke and them amongst the creditors. But by that course one great object breeze in his possession has no effect according to our law, as such things of deeds of assignment-viz., the prompt realization of estates and are not necessaries. If persons choose to trust an infant, they take their distribution of the proceeds—is at once defeated.
chance of being paid. That is the law; and I am not prepared to say We know from experience that this is not an uncommon occurrence. that it is absurd.' " There is nothing illegal in an infant carrying on Deeds of assignment are even now often resorted to, and they would trade. Thousands of infants do 80." "I respectfully but entirely disbe so much oftener but for the objection which we have pointed out. sent from the judgment of the Chief Judge in Ex parte Lynch. It is At the present time clients of our own, who are trustees under a deed of not well-settled law that if an infant has been held out and dealt with assignment for general benefit of creditors, executed by a retail trader, are as a trader he can be made a bankrupt in respect of a trade debt. It is holding over the funds in this way because a secured creditor whose not true that the Infants Relief Act has made no difference with regard security is estimated to be nearly sufficient to cover his claim declines, to the liability of an infant on his trading debts. The words of that on the ground that he is only a trustee for others (some of whom are Act are perfectly general, and it must be taken to refer to all contracts infants), to assent to the deed and place a value upon his security. But except those expressly excepted. The Act is not to be restricted so as if the law of 1849 had been in force the funds might have been divided not to apply to trade debts.” Lush, L.J., also stated in the course of immediately after the expiration of three months from the deed being his judgment: “The law says that, though an infant may trade, he is executed. In another case in our own experience the trustees under a not liable to pay trade debto." similar deed of assignment, thinking that they had obtained the assents Now, we submit that a law which allows an infant to trade thereto of all the creditors, proceeded to divide the proceeds under the (of which “ thousands of infants" take advantage), and which gives deed. They had no sooner done so than another creditor, for whom they the persons from whom he obtains goods on credit no remedy against bad not provided because they were not aware of his claim, filed a bank- him or his property, although they might naturally have considered ruptcy petition and obtained adjudication, and the trustees had out of him of full age, is an anomaly which ought to be remedied withont their own pockets to pay him a sum of money to compromise the matter, further delay. Let it be either made illegal for an infant to trade, he having îrst moved the court and obtained an order for them to pay or else give the persons who have entrusted him with goods on credit over to the trustee in the bankruptcy the whole of the proceeds realized a remedy against his property, if not against himself personally, by them under the deed of assignment. We do not advocate a return or, at any rate, to the extent of such property as he may have acquired to the deed system of the Act of 1861, nor any statutory provision with at their expense. We are sure that it was never the intention of the regard to deeds of arrangement other than deeds of assigument pure and Legislature, in passing the Infants Relief Act, 1874, to affect the law simple by traders similar to section 68 of the Act of 1849, so that our with regard to infonts carrying on trade and contracting debts in the
ggestion would not interfere with the gener prii les of the Govern- way of such trade. The avowed object of that Act was to protect infants ment proposals. A return to the provisions of that section, however, against extortionate money-lenders, jewellers, and such like, and not to would, in our opinion, be found to be a great boon to the commercial interfere with debts contracted by them in carrying on trade; and, in community at large, especially in small estates. It could not, on the our opinion, it would only be equitable to except such debts from the other hand, act at all injuriously, inasmuch as any creditor or number of operation of that Act. As the law at present stands, an infant who may creditors of the requisite amount, if dissatisfied therewith, would have happen to appear to be of full age (and infants who trade nearly always ample time in which to take advantage thereof in order to force the have that appearance), if he does not actually represent hiraself to be of matter into court. Of course it might be necessary to make some further full age, may get goods from dealers in the way of his trade and then provision to give the court jurisdiction in such cases to determine ques- decline to pay, and the law does not give the defrauded dealers even the tions arising under the deed (such as the rights of persons claiming to satisfaction of being able to punish him by criminal process, or a right be creditors to prove and to make trustees accountable for misconduct), to obtain back their goods. If the law recognizes the right of an infant and it might also be provided that such deed should be a bar to, and a to trade, it ought in all consistency to regard goods obtaiued on credit discharge to the debtor in respect of, all claims made under the deed. by bim in the ordinary way of such trade to be just as much And to prevent attempts to introduce into deeds of the kind extraordinary saries” as any article obtained by him for “home consumption.” They powers, a simple statutory form of deed might be provided. It is are undoubtedly necessaries for the purposes of his trade. probable, also, that other details of a similar nature might suggest The question when a person who has been a trader, but has ceased to themselves if the principle we have contended for were only acceded to; carry on any trade, can be adjudicated bankrupt as a trader is one of but there would not, we think, be much difficulty in framing details considerable importance to the commercial community, and since the to make the proposal work satisfactorily. It is safe to decision in Ex parte Schomberg, Re Schomberg (23 W. R. 204, L. R. 10 prophecy ; but unless some provision such as we suggest be made in the Ch. App. 172), it has been left in a very unsettled and unsatisfactory interest more particularly cf small estates, (for the provisions of clause 43 condition. The old law was tolerably clear, that any person who had of the Government Bill we consider altogether inadequate for the been a trader, and still owed debts contracted by him whilst he was a purpose) we will venture to predict for the Government proposals as trader, could be adjudicated as such upon a petition presented by a creditor great a failure as the present Act has proved.
whose debt was contracted at the time of such trading. But in Ex parte The next point we desire to notice is the present law as to the Schomberg the Court of Appeal held that a person, in order to be sued on non-liability of infants to be made bankrupt, taking for our text a debtor's summons as a trader, must be a trader at the time when the the case of Ext parte Jones, Re Jones (29 W. R. 747). In that summons is served. The ratio decidendi of that decision would require case the law was expressly laid down by the Court of Appeal (overruling such a person to be also a trader at the time of his committing any act the Chief Judge), that “an infant trader, who has not actually repre- of bankruptcy on which he might be adjudicated in order to be made sented himself to be of full age, cannot be adjudicated bankrupt in bankrupt as a trader. Considering the very wide differences in the bankrespect of a trade debt, notwithstanding that he lias himself previously, ruptcy law between traders and non-traders as affecting voluntary settlefiled a liquidation petition, the proceedings under which have failed.” ments, property in the order and disposition of a bankrupt, the liability The foregoing quotation is from the head-note to the report in the of a bankrupt to criminal offences under section 11 of the Debtors Act, WEEKLY REPORTER, the italics, however, beiug our own. We have given 1869, and a variety of other matters, this is a point which, we think, those words in italics because we think the judgments of the Master of might be more clearly and equitably provided for. Cases have arisen in the Rolls and Lush, L.J., fully support the proposition which the head. our own experience where traders have disposed of their businesses and note would contain if the words in italics were wholly omitted. In the ceased to trade, owing, however, debts in respect of their trading, and the case we refer to the appellant, who at the time of the appeal was still an law ought, we think, to specially provide that such persons should be infant, carried on business as a coal and breeze merchant. In February, liable to be made bankrupt as traders, notwithstanding their having 1881, he filed a petition for liquidation, and on the 10th of March the first ceased to trade, provided that a petition be presented against them within, statutory meeting of creditors was held, but no resolution was passed say, six months from the time of their having ceased to carry on trade thereat. On the 21st of March the Corporation of Birmingham presented a bý a creditor whose debt has been contracted during the time of such bankruptcy petition against him, alleging that he was indebted to them trading. in the sum of £180 13s. for coke and breeze sold by them to him. The Another point to which we would call attention (in connection with appellant had never actually represented himself to the corporation as of the Government proposal to restrict the powers of certain creditors to full age, but they had always believed him to be so. The county court vote, as contained in clause 17 of the Bill of last session), is as to judge made an order of adjudication, which, on appeal to the Chief creditors in respect of bonds or guarantees given to them as security Judge, was upheld, but which was reversed by the Court of Appeal. The for the debts of third persons, and also as to creditors of a firm of Master of the Rolls laid down the law on the subject very distinctly in two or more debtors holding collateral security over the separate his judgment, from which we make the following extracts : “The first estate of one of their debtors. With regard to the former class of point to be considered is whether the appellant is liable at all to the cases, we have known instances where the holders of such bonds or corporation. If he is not ‘a debtor' he cannot present a petition for guarantees have been able to outvote the whole of the rest of the liquidation, nor can he be made a bankrupt. How then is he made out creditors. Surely these are as bad as the cases provided for by clause to be a debtor ? It is not suggested that the coke and breeze which he 17, and ought to be included in that provision. Then, with regard to bought were necessaries—that they were supplied for home con- the other class of cases, we have known instances of creditors holding Bumption. He bought them for the purpose of selling again. He such collateral security to the value of more than their claims against
the firm, but they have been able to prove and vote in competition
OATHS. with the rest of the joint creditors for the full amounts of their debts. Now, although it may be right to relieve the separate estate of the
[To the Editor of the Solicitors' Journal.] partner who has given the collateral security to the extent of the
Sir,--A deponent to a probate affidavit is willing to take the oath, but dividend upon the debt to be received from the joint estate by ad objects to taking the Testament or the Evangelists in his hand or kissing mitting a proof upon such estate for the full amount, we think it the book. 1, after some trouble, induce him to hold the book while I would be only proper to place some restriction upon the power of such repeat the usual form of words, after which he says “Yes," and puts a creditor to vote in competition with the other creditors. This might down the book. Was the oath rightly administered ? Is there any legal easily and fairly be done by requiring him to place a value upon his necessity for kissing the book or even for touching or holding it at all! security (under the penalty, if he should undervalue it, of being com- Mr. Braithwaite only says a Christian swears on the Holy Evangelists." pelled to deliver it up to the trustee on being paid the amount of his The deponent referred me to some dictum of Lord Brougham as supportvaluation), and being allowed to vote only in respect of the balance of ing his view.
T. P. Y. his debt after deducting the amount of such valuation.
CASES OF THE WEEK.
STATUTE OF LIMITATIONS-MORTGAGE-FORECLOSURE ACTION" PAY. [T'o the Editor of the Solicitors' Journal.]
MENT OF PRINCIPAL MONEY OR INTEREST"-RECEIPT OF Rents BY MORT. Sir,- I observe that in your issue of the 4th inst. you set out certain
GAGEE-3 & 4 Will. 4, c. 27, ss. 2, 24, 40-7 WILL. 4, AND 1 Vict.c. 28 – resolutions passed on the 15th, 16th, and 30th of December last, on the
37 & 38 Vict. c. 57, s. 1.-On the 4th inst, the Court of Appeal (JESSEL,
M.R., and BRETT and HOLKER, L.JJ.) reversed the decision of Fry, J., on subject of Solicitors' Remuneration.
the main point in the case of Harlock v. Ashberry (29 W. R. 887, L. R. 18 As your readers have been made partially acquainted, through some Ch. D. 229, 25 SOLICITORS' JOURNAL, 640). The principal question was as to source unknown to me, with what has been done by the Associated the construction of the Act 7 Will. 4, and 1 Vict. c. 28, which provides Provincial Law Societies, I think it well to add that at a meeting of the that "it shall and may be lawful for any person entitled to or claiming under Associated Provincial Law Societies held on the 1st inst., the draft order any mortgage of land
to make an entry or bring an action at law dated January 6, 1882, as submitted by the president of the Incorporated or suit in equity to recover such land at any time within twenty years next Law Society, was approved.
Thomas MARSHALL, Hon. Seo. after the last payment of any part of the principal money or interest secured Associated Provincial Law Societies, Leeds, February 8.
by such mortgage, although more than twenty years may bave elapsed since
the time at which the right to make such entry or bring such action or suit [Mr. Marshall is probably not aware that the resolutions referred to in equity shall have first accrued." The period of twenty years is now, by were printed in an appendix to the Worcestershire Law Society's the Act 37 & 38 Vict. c. 57, s. 1, reduced to twelve years. By section 2 of Report.-ED. S. J.]
the Act 3 & 4 Will. 4, c. 27, it is provided that no person shall bring an
action to recover any land but within twenty years next after the time at SOLICITING PROOFS AND PROXIES IN BANKRUPTCY.
wbich the right to bring such action shall have first accrued to some person
through whom he claims, or to himself, if the right shall not have accrued to [To the Editor of the Solicitors' Journal.]
any p rson through whom he claims. And by section 24 it is provided Sir,—The resolution under the above heading passed by the Worcester.
that no person claiming any land in equity shall bring any suit to recover
the same shire Law Society, which is reported in your issue of the 4th inst., is hereinbefore contained,” he might have brought an action to recover the
but within the period during which, by virtue of the provisions aimed at a form of “ touting,' which, I think, requires more attention,
same “if he had been entitled at law to such estate, interest, or right in or tə with a view to its suppression, than it has hitherto received at the hands the same as he shall claim therein in equity.” And by section 40, “No of the profession at large.
action or soit or other proceeding shall be brought to recover any sum of I enclose a copy (omitting names, &c.) of a letter received by a client money secured by any mortgage, judgment, or lien, or otherwise charged upon of mine in relation to some liquidation proceedings. It will hardly be or payable out of any land or rent, at law or in equity, or any legacy, but believed that at the first meeting of creditors the firm of solicitors who within twenty years next after a present right to receive the same shall have issued the letter in question only represented one unimportant creditor. accrued to some person capable of giving a discharge for, or release of, the
I regret to say that they are members of the Incorporated Law Society, same, unless in the meantime some part of the principal money, or some which, I trust, at no distant date, will put on record the disapproval thereto shall have been given in writing, signed by the person by
interest thereon, shall have been paid, or some acknowledgment of the right of the society, as representing the profession, of such a practice. Feb. 7.
M. I. L. S.
whom the same sball be payable, or his agent, to the person entitled thereto or
his agent; and in such case no such action or suit or proceeding sball be brought [The following is the letter referred to :
but within twenty years after such payment or acknowledgment, or the last of “ Several clients of ours who are creditors in this matter have instructed such payments or acknowledgments, if more than one was given." In Harlock us to fully investigate the affairs of these debtors, and ascertain the reason
V. Ashberry a legal mortgage of land was executed on October 11, 1849, the
mortgage deed providing for the payment of the principal and interest on why they have filed their petition, and the best course to adopt in order to April 11, 1850. The interest was allowed to fall into arrear, the last pay. obtain the largest dividend for the creditors.
ment on account of interest by the mortgagor having been made in August, “We shall be glad you can co-operate with us, and give us every 1859. No payment was made on account of principal. In January, 1878, information in your power with regard to the debtors' affairs, and also by the mortgagee gave notice to the tenants that he claimed the estate, and in your attending the general meeting. Should you, however, be prevented coneequence of this notice W., one of the tenants, paid the mortgagee £5, from attending, we shall be obliged by your swearing enclosed affidavit which was half a year's rent of that part of the property which he occupied. of proof of debt and signing proxy so that we may attend on your behalf He paid his next half-year's rent to the morigagor, and afterwards gave up and prevent any inadequate composition being carried, so that the fullest possession of his holding to her. The payment of the £5 was made without dividend may be obtained by the creditors."]
her knowledge. On April 21, 1880, the mortgagee commenced the action against the mortgagor, claiming an account of wbat was due to him on the mortgage in respect of principal, interest, and costs, and foreclosure in default
of payment. The defendant insisted that there had been no paymint of PEREMPTORY ORDER FOR TIME.
principal or interest within twelve years before the commencement of the [To the Editor of the Solicitors' Journal.]
action, nor any acknowledgment of the right of the plaintiff to the mortgaged
property, by the mortgagor or any one on her behalf, and she claimed the Sir,-Can you inform me what is the meaning of a peremptory order benefit of the Statute of Limitations. Fry, J., held that a foreclosure for time to deliver or file a proceeding? I was under the impression action is an action to recover the mortgaged land, not an action to that it was meant that no further time was to be granted, but to-day I recover the mortgage-money, and, consequently, that it is governed, not opposed an application for time in the Queen's Bench Division, but by section 40 of the Act 3 & 4 Will. 4, c. 27, but by sections 2 notwithstanding that I took the objection that a peremptory order had and 24 of that Act, and the Act 7 Will. 4,' and 1 Vict. c. 28. And he already been made a week ago, the master gave another extension of held that the payment of the £5 rent by the tenant W. to the mortgagee had time. Either the word “peremptory" means something or nothing operated under the later Act to prevent the statute running, and to which is it?
keep. alive the mortgagee's right to foreclosure. Though the Act said May I also beg to call your attention to the great convenience it thought that a payment by a mere stranger would not keep the right
nothing as to the person by whom the payment was to be made, he would be to the dispatch of business in the Queen's Bench Division alive. Chambers if one master would sit continually in chambers instead of of his, or by any person who, es between the mortgagor and the mortga.
The payment must be inade by the mortgagor, or by some agent having a fresh master each day ? In my own matter there have been gee, was liable to make any payment to the mortgagee in satisfaction of seven applications for time, which have been heard by six masters. the mortgage debt, and a tenant of the mortgaged property was a person
0. B. who stood in that position. JESSEL, M.R., said that, having regard to the
decision of Lord St. Leonards in Wrixon v. Vise (3 D. & W. 104), and to view the decision of the House of Lords was binding as a jadgment on the the dec'sion of the Court of Appeal in the recent case of Heath v. Pugh construction of the Act; in the other, it was binding as laying down a (29 W. R. 904, L. R. 6 Q. B. D. 345), the court was bound to hold that principle of construction which was applicable to the later Act. This court, the action was an action for the recovery of the land. The question, therefore, was bound to hold that the payment must be made by the therefore, was whether section 2 of the Act 3 & 4 Will. 4 applied so as to mortgagor, or by some agent of his, or by some person, such as a receiver, bar the plaintiff's right to relief, or whether, by the operation of the Act who was entitled to make the payment on his behalf. Any other con7 Will. 4 and 1 Vict. c. 28 time had not run against the plaintiff, notwith clusion would lead to a strange result. A payment which would be good standing that more than twelve years had elapsed since the last payment of ander section 40 of the earlier Act wonld be good also under the later Act : interest was made by the mortgagor. The only question was whether the but a payment which would prevent the time from running under the later payment of £5 by the tenant was “a, payment of any part of the principal Act would not prevent it from running under the earlier Act. The right or interest secured by the mortgage,” within the meaning of the Aci 7 Will. 4 and 1 Vict. c. 28. It was admitted that the £5 was demanded as rent and close the land would not.
to recover the mortgage money would be barred, while the right to forepaid as rent. The argument which succeeded before Fry, J., was, that the Another point in this case was this. Fry, J., was inclined to think that, by Act did not say that the payment must be made by any particular person ; accepting subsequent rent from the tenant, after he had paid the £5 to the that a payment of rent to the mortgagee would have to be brought into the mortgagee, the mortgagor bad ratified the payment to the mortgages, and account as between the mortgagee and the mortgagor ; and that, consequently, thus made the tenant his agent. The Court of Appeal held that there was, it was a payment of principal or interest within the meaning of the Act. The in fact, no evidence of any such ratification. But JESSEL, M.R., said that answer to this argument was twofold. First, it was not a payment of princi. there could not be a ratification in law, for the payment was rightly made es pal or interest. Secondly, it was not made by the person who was liable to
a payment of rent to the mortgagee, and it could not be altered by anypay the principal or the interest. It was quite true that the payment must thing done afterwards by the mortgagor.
The decision of Fry, J., was be charged in the account between the mortgagor and the mortgages, but it accordingly reversed, and the action was dismissed, except as to that part of was only on the final balancing of the account that it would appear on which the property in respect of which W. had made the payment of rent in 1872 side the balance lay. In the absence of any special appropriation, there was That payment, the court said, operated to put the mortgagee in possession no appropriation of the payments to any particular purpose ; it was only on of that part of the property, and, therefore, be was entitled to that extent to the fio al result of the account that an appropriation would be made. But, however that might be, the person who made the payment was a tenant, and lett.
a foreclosure judgment.-SOLICITORS, Gregory, Rowcliffes, & Co.; T. A. Barlhe made the payment as rent. How then could it be said to be paid in any other character ? The mortgagee was the legal owner of the land, and he
COMPANY-WINDING UP-LEAVE CREDITUR receired the payment as rent ; he was entitled to exact it as rent, and he did
TO PROCEED WITH so exact it. Again, the payment was not made by the mortgagor, or by any 163.- In a case of In re The Vron Colliery Company, before the Court of
EXECUTION AFTER WINDING-UP ORDER-COMPANIES ACT, 1862, ss. 85, person who was liable to pay the principal or the interest. The theory of all the Statutes of Limitation was this, that a payment made by a person Appeal on the 25th ult., the question was whether leave ought to be given to liable to pay was an acknowledgment of a right, Lord Westbury so put it
a creditor to proceed with an execution against the goods of the company, in the case of Chinnery v. Evans (11 H. L. Cas. 115). It would not be an notwithstanding that an order had been made to wind up the company. The acknowledgment unless it was an admission of the right to receive the money oreditor had commenced his action against the company on the 28th of December, and the liability to pay it. The Master of the Rolls thought that Chinnery had recovered judgment by default on the 6th of January, and had issued v. Evans amounted to an actual decision of the point in the present case,
execution the same day without notice of any petition to wind up the combecause the learned lords who decided it treated section 40 of the Act 3 & 4 Will! pany. The sheriff levied on the 7th of January. On the 4th of January a 4, c. 27, as being in substance the same thing as the Act 7 Will. 4, and 1 Vict. petition to wind up the company had been presented, under whieh, on the c. 28. Lord Westbury was clearly of opinion that the payment under the 10th of January, a provisional liquidator was appointed, and an order was later Act must be made by a person liable to make it, and his lordship made staying all further proceedings in the action until after the hearing of thought that Lord Cranworth was of the same opinion, though it was not
the petition. The petition was heard on the 14th of January and a winding up quite so clear. Both on principle and authority, therefore, the Master of the order was inade. The creditor then applied for leave to go on with Rolls thought that the payment must be made by a person who was liable to his execution, and Bacon, V.C., granted the application. The Court of pay the principal and intere-t secured by the mortgage, and the payment in Appeal (JESSEL, M.R., and Brett and Holker, L.JJ.) were of opinion, the present case was not made by such a person. BRETT, L.J., said that, inas
on the facts, that there were no special circumstances such as to justify much as the payment of the £5 rent would go into the account in the giving of leave, and they discharged the Vice-Chancellor's order. Referfavour of the morty agor, he should have been anxious to treat it as ence was made to many of the previous cases in which similar applications & payment made by him, if by any reasonable construction of the Act he have been gran'ed, sich as In re Bastow & Co. (15 W. R. 1033, L. R. 4 Eq. could do so. But, aocording to the ordinary rules for the construction of 681); In re The Railway Steel and Plant Company (26 W. R. 418, L. R. 8 statotep, he could not. It was an enabling statute. Section 2 of the Act Ch. D. 183); In re The London Cotton Company (14 W. R. 575, L. R. 2 Eq. 3.& 4 Will
. 4, c. 27, was more rigorous than any previous Statute of 53) ; and. In re Richards & Co. (27 W. k. 530, L. R. 11 Ch. D. 676). Limitations, and the later Act modified it, and was to be read with it, and Jessel, M.R, said that there cases were decided in the courts of first instance. as in the nature of a modification or proviso. Then the question arose
In some of them it had been held that tbe mere giving of an indulgence by a whether a payment of rent by a tenant to a mortgagee, who had exercised creditor at the request of the company was a special ground for giving him a his legal right to demand it, was a payment of part of the principal or preference over the other creditors. He was not satisfied that these cases bad interest secured by the mortgage within the meaning of the Act. Hig
been rightly decided, though it was vot necessary on the present occasion to
He thought there was lordship thought that it was not, and for three reasong. First, it was not a say that they ought to be overruled. payment at all as between the mortgagor and the mortgagee. It was only company, the act of the company in asking for time was to prejudice
difficulty in saying that when a creditor voluntarily gave time to the an item in an account which would bave to be taken between them, and an item in an account which would have to go to the credit of the one party or
the other creditors. In others of the cases in question it had been the other was not a payment. The account might contain many other held that the fact that a creditor bad been induced by some false pretence items wbich were not principal or interest. Secondly, the payment was
on the part of the company-i.e., of the directors of the company-to delay not made as a payment of principal or interest. It was a payment of rent, after the making of a winding-op order. It was very difficult to see wby
his proceedings to recover his debt was a reason for giving him a preference made as such by the person who made it, and received as such by the principal or interest, it was not a payment made by the mortgagor or by any approval of those decisions. Brett, L.J., said that the facts of the cases person who received it. Thirdly, if it could be said to be a payment of this should affect the rights of the other creditors. He need not, however,
now say more than that he must not be understood as intimating any agent of his, or by any person who was entitled to make a payment of referred to were not at all like those of the present case, and therefore it principal or interest on his bebalf. His lordship thought that the payment must be made by snch a person in order to bring it within the statute. He declined to express any opinion about it. Holker, L.J., also said that he
was not necessary to say whether those cases were rightly decided, and he thought that, in all the statutes of Limitation, when a payment was allowed felt a difficulty in coming to the conclusion that the giving of an indulgence to take a case out of the statute, it must be such a payment as would by a creditor to the company was a special circumstance which would amount to an acknowledgment of right, and, therefore, it must be a payment by the person liable to pay or his agent, and he thought that this other creditors who had equally given an indulgence. But it was not
justify the court in allowing him a preference after the winding up over was the real ground of the decision in Chinnery v. Evans, He thougbt that the judgment in that case was intended to apply to the statute 7 Will. 4, necessary to decide the point now, for it did not arise on the facts.—SOLI. and 1 Vict. c. 28, as well as to section 40 of the statute 3 & 4 Will. 4, c. 27.
citors, Kennedy, Hughes, f Kennedy; Mercer of Mercer. Bat, assuming that it only applied to section 40 of the earlier Act, still be thought it was impossible to guppose that the House of Lords really, as a TRUSTEE - BREACH OF TRUST-NEGLIGENCE-ACCRETION TO TRUST FIND matter of reading, read into the former part of the section (after the - New SHARES IN COMPANY ALLOTTED IN RESPECT OF OLD. - On the 3rd words "sball have been paid ') the words “by the person by whom inst. the Court of Appeal (Jessel, M. R., and Bretr and Holker, L.JJ.) the same shall be payable, or his agent," which followed the words reversed the decision of Fry, J., in the case of Briggs v. Massey (29 W. R. "eball have been given in writing.” The words by the person, 926, 25 Solicitors' JOURNAL, 743), though upon a ground which was not &c.," were entirely governed by the word "signed," and it would be taken in the court below. The question was as to the extent of a trus. impossible to read them into the former clause after the word “ paid." He tee's liability to make good part of the trust estate which, through his negthought that the House of Lords would have construed seotion 40 in the ligence, the busband of the tenant for life had been allowed to receive. By the same way if it had stopped at the word “ paid," and, 80 construing it, settlement made on the marriage of the busband and wife, the residue of the they came to the conclusion that, because it was a Statute of Limitations, estate of a testator, to which the wife was entitled, subject to the life estate the payment must be a payment made as an acknowledgment of a right, of the testator's widow, was vested in trustees, on trust for the wife for her and therefore it must be made by the person liable to pay or his agent. life, with remainder to the husband for his life, witb remainder to the children And, if that was the principle of the judgment, it would be exactly applicable of the marriage. The wife was the surviving executrix of the testator, and to the construction of the Act 7 Will. 4, and i Viot. c. 28. In the one the husband, availing himself of this circumstance, sold parts of the personal
estate of the testator, and appropriated the proceeds to his own use. Also, was made by him either to the wife or to the trustees-no evidence, indeed, after the death of the widow some shares in a company, which formed part of of the communication of the investment to her. If a declaration of trust was the testator's estate, were transferred from the names of the executors into the to be found anywhere, it could be found only in the direction given Dame of the husband alone. Afterwards some new shares were allotted by the by the husband his bankers to pay the interest to the company to, and accepted by, him in respect of the old ones, and he paid up wife's separate account. This, no doubt, amounted to a dedication the calls on the new shares in full, though there was no evidence to show out of of the particular sum to which the direction applied to the wife, but not to a what funds he did so. He sabsequently mortgaged the shares, new and old, declaration of any irrevocable trust of the capital. He might at to a person who had no police of the trust. A decree having been made any time have retained the interest himself, as he did the interest which was declaring that the surviving trustee of the settlement was liable to make paid in March, 1872. Moreover, in order that a declaration of trust might good the value of the residuary personal estate of the testator which had been operate, it must be clear as to the person who was to take the benefit of it, and received by the husband, and the trustee baving paid into court the amount here the circumstance that the wife and the two sets of trustees were claiming of the proceeds of sale of that property (other than the shares in the com- the benefit went far to show that there had been no clear declaration of trust. pany), the question arose on further consideration whether the trustee was The circumstances did, indeed, show an intention on the part of the husband to liable to account for the present market value of the new shares which had do something inconsistent with his retaining the absolute dominion of the been allotted to the husband, or only for the selling value of the option to take fund, but there was not such a clear, complete, and irrevocable declaration of them at the time when they were offered to him by the company. Under the trust as was essential to enable the court to enforce it. There was nothing more settlement the trustees had no fund which they could have properly applied in than an intention.-SOLICITORS, W. & J. Gibson. paying the calls on the new shares. Fry, J., Leld that the trustee was liable to pay the present market value of all the shares, new and old, but that, if the husband had paid the calls on the new shares out of the proceeds of sale of
FORFEITURE CLAUSE_VALIDITY-GIFT OVER.-Io a case of Hurst v. Hurst, the other personal estate which he had received, the trustee would be entitled before Fry, J., on the 7th inst., a question arose as to the validity of a clause to be repaid the amount of the calls so paid out of the moneys which he had of forfeiture contained in a will. The testator, by his will, gave all his freepaid into court, and an inquiry was directed for this purpose at the risk of bold and leasehold property to his executors and trustees, upon trust (inter alia) the trustee as to costs. The Court of Appeal held that if the husband bad to permit bis son to collect and receive the net rents of certain specified free. paid the calls on the new shares out of his own money, still, the trust estata hold and leasehold houses, to and for his own use and benefit, during his life, could not take those shares without paying the calls, and he would have a
and after his death upon trust that the executors and trustees should convey lien on the shares for the calls which he had so paid, and the trustee would be and assign the houses to the children of the son in equal shares, absolutely, entitled to the benefit of that lien, and to stand in the husband's place in of the son should die before attaining that age, then on trust to convey and
attaining the age of twenty-one years. But, in case any of the children respect of it. To that extent, therefore, the judgment could not be supported. assign the shares or share of the chilåren so dying under that age to the others -SOLICITORS, F. W. Reynolds ; Singleton 8: Taltershall.
or other of such children ; but, in case of the son not having any issue, or in case none of his children should live to attain twenty-one, then the testator
declared that ihe property, the rents of which would be receivable by the son HUSBAND AND WIFE-CHOSE IN ACTION OF WIFE-REDUCTION INTO during his life, should be conveyed and assigned by his executors and trustees POSSESSION BY HUSBAND-GIFT BY HUSBAND TO Wife.-In a case of to, and divided equally between, such of the children of the testator's daughter Errington v. Riddell, before Fry, J., on the 4th inst., the question arose as should live to attain the age of twenty-one. The testator bad, by a previous whether a wife's chose in action had been reduced into possession by her hus- clause, given other freehold and leasehold property in a similar way to his tand, and there was the further question whether, if he had reduced it into executors and trustees, on trust for his daughter for her life, with remainder to possession, he must be taken to have made a gift of it, either to the wife her children on their attaining twenty-one. By a subsequent clause, the absolutely for her separate use, or to the trustees of one of two settlements testator declared that the bequests therein before made to bis son and daughter which had been executed on the marriage. One of the settlements was of respectively should be subject to the following condition-viz., that they should property belonging to the husband, the other was of property belonging to in nowise charge or incumber the property, the rents of which were receivable by the wife; the same persons were the trustees of both. Under the settlement them during their respective lives, or any part thereof. And, in case either of the husband's property the income was to be paid to him for his life ; after his son or daughter should so charge or incumber the property, or any part his death an annuity was to be paid out of it to the wife, and subject thereto thereof, or in case his son should become bankrupt or ipsolvent, or compound the property was to be on trust for the childr’n of the marriage. This settle- with his creditors, then the testator declared that the bequest to his son or ment authorized the investment of the trust funds on the security of the daughter so transgressing such condition, or in the case of the bankruptoy or debentures of any incorporated company. By the settlement of the wife's insolvency of his son, should thereupon become absolutely forfeited. And the property the income was, during the joint lives of the husband and wife, to testator declared that, in either of such cases, the trnsts therein before created be paid to her for ber separate use, without power of anticipation; with re- in favour of the child or children of the son or daughter so transgressing should mainder to the survivor for his or her life ; with remainder on trust for the at once take effect, and be acted upon by his executors and trustees as thereinchildren of the marriage. This settlement authorized the investment of the before directed. After the testator's death the son executed a deed affecting to trust funds only on Government or real security. By the will of the wife's charge his life interest under the will with the repayment of a sum of money father, who died on the 5th of April, 1870, he, in exercise of a power reserved advanced to him. The action was brought by one of the trustees of the will, to bim in another settlement, appointed the sum of £1,000 to her absolutely. claiming a declaration that the charge was wholly inoperative, except as This sum was charged on certain real estate. The interest due on the £1,000 working a forfeiture of the son's life interest. FRY, J., said that the trust to was, as it acrrued due between the 5th of April, 1870, and the month of convey to the children of the son was one which could not be carried into October, 1872, paid by the person liable to pay it to the wife, and was by effect duriog the life of the son, because it was a trust to convey a certain her paid to a separate banking account which was kept in her name, and aliquot share to each of the children of the son who should attain twenty one, and this was done with the assent of her husband. On the 11th of March, 1873, it was, evidently, impossible to ascertain what would be the minimum share of a the £1,000 was paid off by means of a cheque payable to the husband, and at child until the death of the son, because the class would not be ascertained the same time the interest, from October, 1872, to the 11th of March, 1873, till then. He thought that if the event happened of the son incumbering his was paid to him. On the same day he paid the cheque to the bankers of the interest, the forfeiture clause would operate as a clause of cesser if there was North-Eastern Railway Company, and wrote to that company requesting them no gift over. But the testator went on to say that, on the execution of the to apply the money in payment for £1,000 debenture stock of the company, charge, the trast in favour of the child or children of the son should at once which he requested them to register in the names of the persons who were take effect, and that was a trust which it was impossible to perform during the the trustees of the two settlements. This was shortly afterwards done, and life of the son. Could it be construed as a trust for the children of the son the certificate of the stock was sent by the company to the husband, and was who might be living at the time of the cesser of his life interest ? Io his retained by him. The senior trustee of the settlements was aware of this lordship's opinion ihe express words excluded the possibility of such a investment ; the other trustee did not know of it during the life of the construction. No provisions could well differ more than a provision for the busband. The warrants for the int-rest on the stock were sent every half family of the son living at the time of his death, and a provision for his year by the company to the senior trustee, who, after indorsing them, sent them family living at the time of the cesser of his life interest. Then arose to the husband. The husband each half year during his life sent the interest the question whether the clause of cesser was to take effect upon warrants to his bankers, with a direction to carry the amount to the credit of the execution of the charge, or upon the execution of the charge bis wife's separate account. In May, 1876, he drew up a statement in writing and the taking effect of the gift over. If the former, the clause would which purported to be a list of the property which he then possessed, and in be clearly good; if the latter, it would be clearly bad, because one of the two that statement no mention was made of the £1,000 debentare stock. He died events, on the happening of which it was to take effect, would be impossible, in 1878, having made a will in June, 1876, which contained po specific reference and it was well settled that an estate which was to go over on the happening to the debentare stock. After his death the wife claimed the stock, on the of an impossible condition was an absolute estate. If the question had been ground that the husband had not reduced the £1,000 into bis possession, or open bis lordship said he should bave thought the true meaning of the testathat, if he had, he must be taken to have declared a trust of it for her tor was that the gift over was to take effect only on the execution of the absolute benefit. The trustees of the two settlements claimed the stock charge and the happening of the other event. But he thought that the as having been given to them by the husband on the trusts of one or other of decision of the Court of Exchequer Chamber in the case of Doe v. Eyre (5 the settlements. The executors of the liusband claimed the stock as forming C. B. 713), was a direct authority to the contrery, and that case had been part of his estate. Fry, J., beld that it had passed to the executors. He said considered and followed by Vice-Chancellor Kindersley in Robinson v. 1700d that when the husband received the cheque for £1,000 he was in a position to (27 L. J. Ch. 726). He must, therefore, hold that the clause of forfeiture receive the £1,000 without the consent of any other person. This amounted was capable of operating. Another argument raised was that the charge, not to a reduction into possession. He had the cheque in his hands and could have being a valid charge, could not have any operation at all. It could not affect turned it into one thousand sovereigns. Then the question arose the son's interest, and, therefore, could not work a forfeiture. As to this whether, by his subsequent acts, the husband had declared an irrevocable truet point, Fry, J., said that the forfeiture, if it took effect at all, was the result of the £1,000. His lordship was of opinion that he had not. There was of the execution of the charge, and to hold that the result or consequence of nothing to provent him from at any time receiving the interest himself if he the charge prevented the charge from having ever existed at all would be had chosen to do so. There was no evidence that any special declaration of trust abeurd. This would be in effect to hold that a mi could haye an estate