Page images
PDF
EPUB

66

[ocr errors]

And since we can see

a brother artist he agreed to act for A. I might be a fool for somebody to the person entitled to the benefit of the" acknowledgrefusing to take the portrait of B., but no one will deny that I ment" or obligation." It would seem as if the seductive vision could so refuse. It is obvious at once to anyone that the contract of "obligations" made, as it were, to "run with " the documents, is that the painter should paint it himself, but why is this had caused to be forgotten the obvious fact that documents are obvious? The reason does really seem to come very much to this: not, like lands, things which cannot be hidden, and of which the that the nature of a portrait painter's business is that he himself existence and whereabouts is always notorious. On this account paints portraits to order, but does not sell or otherwise deal in" acknowledgments" and "undertakings seem to be much less portraits, and consequently the natural meaning of an order to him advantageous to the purchaser than the covenant in common use, is that he himself is to make the article. It does not seem to turn expressed to be defeasible upon delivery (at his own expense) of a upon the particular value of his work, because it is not only that substituted covenant by the covenantor. he cannot turn you over to a person of inferior skill. A mere nothing in them (unless it be the before-mentioned facility with dauber could not turn you over unwillingly to Millais if he had which they might perhaps be evaded) to commend them to the agreed to supply you with a portrait. If, by the general con- favourable opinion of vendors, we should not anticipate that, in duct of his business, a man holds himself out as selling articles of transactions of any importance, the existing practice will be dishis own manfacture only, then it does seem to us consistent with placed by the machinery offered by section 9. The reader must justice and expediency that a contract with him should be taken also remember the doubt expressed at the close of our last to be one for the supply of such articles only, though the contract article, whether the largest purchaser at an auction, not being “a does not expressly stipulate it, because it will be the natural person who retains possession of documents," can be brought expectation of the other party to the contract that the articles will within the scope of the section. be of the manufacturer's own manufacture.

THE PRACTICAL EFFECT OF THE
CONVEYANCING ACT.

VIII.-PRODUCTION AND SAFE CUSTODY OF TITLE DEEDS
(continued).

THE section upon which, at the close of our last article, we made some remarks, deals with two distinct kinds of contract-(1) an acknowledgment of the right to the production of documents and the delivery of copies, by the section styled "an acknowledgment"; and (2) an undertaking for safe custody of documents. This last is not expressly styled "an undertaking," but the section, without the formality of a definition, by degrees slips into denoting it by the single word. These contracts must be writing, but they seem to need no other formality. We can discover nothing to restrict the documents to documents of title to land; or to restrict the occasions on which such contracts can be made to sales or conveyances; or to restrict the relation subsisting between the parties to the relation of vendor and purchaser, or to any other definite relation. The following points seem to be not unworthy of attention :

IX. AS TO TRUSTS.

66

We propose now to group together the provisions of the Act relating to trustees and executors. The object of section 30 (which applies only in cases of death after the commencement of the Act) is to extend the provisions of section 4 of the Vendor and Purchaser Act, 1874, and section 48 of the Land Transfer Act, 1875 (which are repealed), and, as so extended, to render them compulsory. To take from trustees and mortgagees the power of directing the devolution of the trust or mortgage estate would undoubtedly The point sweep away considerable expense and litigation. first clause of the first sub-section provides that: we have to consider is how far that object has been attained. The

"Where an estate or interest of inheritance, or limited to the heir as special occupant, in any tenements or hereditaments, corporeal or incorporeal, is invested on any trust, or by way of mortgage, in any person solely, the same shall, on his death, notwithstanding any testamentary disposition, devolve to and become vested in his personal representatives or representative from time to time, in like manner as if the same were a chattel real vesting in them or him."

The duties imposed by an "acknowledgment" and an "undertaking," respectively, are onerous; moreover, by sub-section (2) the person entitled to their benefit has the right to enforce specific performance of the obligations imposed by an " acknowledgment"; and though sub-section (5) provides that he shall pay the costs and expenses, it does not provide that these must be paid before the specific performance can be enforced. But the burden of these obligations is perhaps more easily shifted than the burden of the covenant in common use; sub-sections (2) and (9) provide that an "acknowledgment" and an "undertaking," respectively, shall " bind each individual possessor or person so long only as he has possession or control of the documents. Suppose a vendor, "retaining" possession of title deeds relating to property other than the property sold, should execute what we will take the liberty to style a pro formá mortgage of the said other property, in consideration of the sum of ten shillings, and should hand over the title deeds to the mortgagee. The mortgagor would then certainly not "have possession thereof "; and we submit that he could not, with any propriety, be said to "have control" of them. In the elaborate list of " obligations set forth in sub-section (4), we find nothing whereby the " person entitled to request production " is enabled to compel the mortgagor to disclose the name of the mortgagee. Neither do we find any thing to oblige him against his will to exercise for the benefit of anybody else his right under section 16 to inspect and copy the title deeds in the mortgagee's hands.

Our object in pointing out how to evade these obligations is not to recommend evasion of them to the reader, but to illustrate what we take to be the section's great defect. It does not, so far as we can see, oblige a person who has given an "acknowledgment" or "undertaking" to another person, and who afterwards delivers the documents to somebody else, to give the name of this

Where an

Before we consider how far devises of trust and mortgage estates have been rendered nugatory, we shall make one or two observations on the language of the section. The first thing to be observed is that the draftsman has here abandoned his definition of "lands," which term, by section 2 (ii.), is to include, unless a contrary intention appears, "lands of any tenure, and tenements and hereditaments, corporeal or incorporeal." The reason for this may have been an intention to keep copyholds outside the section; but this object might have been more clearly attained by an express statement that the section should not apply to hereditaments of this tenure. The next point to observe is that the literal construction of the words of the section approaches an absurdity. estate "is vested on any trust . in any person solely, the same shall, on his death," devolve to his personal representatives. The most obvious time to which to refer the words "is vested," would be the time of the creation of the trust; in which case it would follow that, whenever a settlement of land has at its commencement been constituted with a single trustee, the lands will devolve at his death upon his personal representatives, although in the meantime the property has been vested in himself and new trustees. If this construction be thought too absurd to be adopted, we shall take leave to complain that we have too often been left to such a consideration for our chief guidance. No obscurity would have hung over the phrase, “Where at the death of any person, an estate, &c., is vested on any trust in him solely, &c." are easily able to imagine phraseology much more clear than the somewhat ludicrous provision that the estate shall on the death of the trustee devolve to his personal representatives from time to time.

And we

But these suggestions are merely by the way. What is the effect of the provision that the estate shall, "notwithstanding any testamentary disposition, devolve to and become vested in " the "personal representatives or representative from time to time, in like manner as if the same were a chattel real vesting in them or him"? In what manner does a chattel real bequeathed by a testator vest in the executor? It vests in him, of course, until

PETROLEUM.

SUBSTANCES OF A LIKE NATURE.

assent, and after assent it vests in the legatee. If the executor refuses his assent without cause, he may be compelled to give it (2 Wms. on Exors. 1374). Is this the "manner" in which the CAP. 67.-AN ACT TO REGULATE THE HAWKING OF PETROLEUM AND OTHER trust estate is, on the death of the trustee, to vest in his executor where the trustee has devised trust estates? If so, the effect of the new legislation will by no means be to render nugatory a devise of trust and mortgaged estates, for upon the assent of the executor the estates would seem to vest in the devisee of trust estates. It might be thought that this view is strengthened by a consideration of the next clause of the sub-section, which runs as follows:

"And accordingly all the like powers, for one only of several joint personal representatives, as well as for a single personal representative, and for all the personal representatives together, to dispose of and otherwise deal with the same, shall belong to the deceased's personal representatives or representative from time to time, with all the like incidents, but subject to all the like rights, equities, and obligations, as if the same were a chattel real resting in them or him."

But the last clause of the section provides that—

"for the purposes of this section, the personal representatives, for the time being, of the deceased, shall be deemed in law his heirs and assigns, within the meaning of all trusts and powers."

The effect of this we take to be to enable the personal representatives of the deceased trustee to execute the trusts and powers in all cases in which they might be executed by his "heirs and assigns." But does the clause contain anything to incapacitate his actual heirs and assigns from so acting, if otherwise authorized? Does it say that the personal representatives are to be deemed the only heirs and assigns of the deceased for the purposes of the section? Or might the personal representatives, by assenting to a devise of the trust estates, constitute the devisee of such estates a trustee?

LEGISLATION OF THE YEAR. SUNDAY CLOSING OF PUBLIC-HOUSES. CAP. 61.-AN ACT TO PROHIBIT THE SALE OF INTOXICATING LIQUORS ON SUNDAY IN WALES. This Act, after reciting that the provisions in force against the sale of fermented and distilled liquors during certain hours of Sunday have been found to be attended with great public benefits, and it is expedient, and the people of Wales are desirous, that, in the Principality of Wales, those provisions be extended to the other hours of Sunday, enacts that in the said Principality "all premises in which intoxicating liquors are sold or exposed for sale shall be closed during the whole of Sunday." A second section applies the "Licensing Acts, 1872-1874." A third section fixes-or rather attempts to fix-a date for the commencement of the Act. A fourth section repeats the saving for railway travellers which is contained in the Licensing Act, 1874; a fifth gives a "short title," and that is all. We have all read in the public prints that contradictory decisions upon the vexed question of the date of commencement have proceeded from Welsh justices; that counsel have advised that the Act does not come into operation for a year; that the present Home Secretary has pronounced that the “day next appointed" means the day next appointed"; and finally that a former Home Secretary (Lord Aberdare, who piloted the Act through the House of Lords) "writing from Verona, without a copy of the Act before him," equally declines to give a categorical opinion. "There is a great deal to be said on both sides," but we adhere to the opinion which we have previously expressed that the operation of the Act will not be delayed for a year. The exact words of the section (which formed part of the original Bill introduced early in the session) are these:-"This Act shall commence and come into operation with respect to each division or place in Wales on the day next appointed for the holding of the general annual licensing meeting for that division or place." Now the Act passed on the 27th of August. By the 1st and 2nd sections of the Licensing Act, 1828 (9 Geo. 4, c. 61), the meeting in question must be held on some day between the 20th of August and the 14th of September, at a day, hour, and place appointed at least twenty-one days beforehand. Surely Parliament may be said to have presumed, at the time of the passing of the Act, that all the appointments had been already made; inasmuch as where made after the passing of the Act, the appointed days would be at least three days later than their legal date,

66

The Petroleum Acts, which first began to be passed in 1852, were for a long time temporary, but they were practically made perpetual by the Petroleum Act, 1879 (42 & 43 Vict. c. 47), which by section 4 enacts that the Petroleum Act, 1871, "shall continue in force until otherwise directed by Parliament." This stereotyping of the law has, we suppose, caused that careful examination of it by which it was discovered that the hawking of petroleum was rendered impracticable if not illegal. So the present statute enacts that " any person who is licensed in pursuance of the Petroleum Act, 1871, to keep petroleum to which that Act applies may, subject to the enactments for the time being in force with respect to hawkers and pedlars, hawk such petroleum by himself or his servants." The Acts 50 Geo. 3, c. 41, 52 Geo. 3, c. 108, 24 & 25 Vict. c. 21, the Pedlars Act, 1871, and the Pedlars Act, 1881, are the enactments now in force with respect to hawkers and pedlars. The three first-named Acts concern the Inland Revenue only; the Act of 1871 prescribes that "no person shall act as a pedlar" without a certificate from the chief officer of police of his district, such certificate to be granted to any person "who has during one month previous to such application" resided in the district, on the officer "being satisfied that the applicant is above seventeen years of age, is a person of good character, and in good faith intends to carry on the trade of a pedlar.” The Act of the present session gives the certificate an effect "within any part of the United Kingdom."

The Act upon which we are commenting contains minute regulations vessels " he must use, the construction of his carriage [i.e., as defined in as to the amount of petroleum which each hawker may hawk, the "closed the interpretation clause, " carriage, wagon, cart, truck, vehicle, or other means of conveyance by land, in whatever manner the same may be drawn or propelled "'], the storage of the petroleum in licensed premises, and other matters.

EXPIRING LAWS CONTINUANCE.

CAP. 70.-AN ACT TO CONTINUE VARIOUS EXPIRING LAWS. This statute continues twenty-seven Acts of Parliament until the 31st of December, 1882, which, but for the continuance, would have expired, in accordance with the Expiring Laws Continuance Act, 1880, on the 31st of December, 1881. Among the Acts" continued," the more important are 3 & 4 Vict. c. 82, by which stock-in-trade is exempted from poor rates, the Locomotive Acts, the Ballot Act, 1872, the Corrupt Practices Acts, and the Parliamentary Elections Act. A "continued Act" of great theoretical importance is the Militia Ballots Suspension Act (28 & 29 Vict. c. 46). The necessities of the Militia have been so long provided for by voluntary enlistment that it is little known that compulsory enlistment by ballot is still the law, except as suspended by the Suspension Act, annually continued since 1863.

The late Mr. William Coleman Gill, solicitor (of the firm of Gill & Bush, of Bath), has by his will bequeathed a legacy of nineteen guineas to the Solicitors' Benevolent Association, of which he was a life member from its foundation in 1858.

Amongst the business to be considered at the meeting of the Common Council to be held next week is a motion by Mr. W. J. Fraser, which has been altered as follows:-"That it be referred to the Law and City Courts Committee to inquire and report to this court, as soon as practicable, as to the delay and expense to which in some cases citizens and others who may be judgment creditors are subjected in obtaining from sheriffs' officers (except those of the City of London) and county court bailiffs moneys received by them in respect of executions levied at the suit of such creditors, and the best means to be adopted for insuring the more speedy payment of all such moneys to the parties entitled thereto, with power to confer thereon with the Right Hon. the Lord High Chancellor, Citizen and Mercer."

The following (says the Kentucky Law Journal) is the initiatory paragraph, literally and with punctuation, transcribed from a brief lately presented by an attorney to a high court sitting in Kentucky :-"The desire of Counsel to free your Honor, from an oral argument of length suggested, by the continuity of arduous labors since the commencement of the term and the appearing fatigue caused, by preceding matters prevented full verbality, at the time upon the Propositions of Law-agreement and facts shown, by the papers of the controversy, as would otherwise have done,"

REVIEWS.

FISHER'S DIGEST.

FISHER'S DIGEST OF THE REPORTED DECISIONS IN ALL THE COURTS, INCLUD-
ING A SELECTION FROM THE IRISH, FROM HILARY TERM, 1870, TO EASTER
VACATION, 1880. Consolidated and arranged by T. W. CHITTY, Esq.,
and J. MEWS, Esq., Barristers-at-Law. Two volumes. H. Sweet.
A DIGEST OF THE REPORTED DECISIONS OF ALL THE COURTS, INCLUDING A
SELECTION FROM THE IRISH (BEING A CONTINUATION OF FISHER'S DIGEST)
DURING THE YEAR 1880. By T. W. CHITTY, Esq., and J. Mews, Esq.,
Barristers-at-Law. H. Sweet.

Fisher's Digest is too well known to need any introduction to our readers. No one who has seen the frequent reference which men in large practice at the common law bar are in the habit of making to it, can doubt its enormous value to the practitioner. The continuation of the Digest from 1870 to 1880 has this great feature, that for the first time the Digest is complete, and includes all the cases, both common law and chancery. The advantage of the arrangement adopted in the book is obvious. Take, for instance, the case of a practitioner who wants to know what decisions there have been since 1870 with reference to what companies will be wound up. All he has to do is to take down the volume, turn to the head "Company," and run his eye down the synopsis at the commencement of that head; he finds at once what he wants under the sub-heads “Winding up," "What Companies." He turns to the page referred to at this place, and there he has all the cases arranged with clear italic headings. In the last volume, including all the cases for 1880, we find several improvements. Numerous cross-references have been added, important dicta have been inserted, and the list of cases overruled is no longer confined to those which are referred to in the head-notes of the reports. As references to new statutes and rules have also been added, the reader has before him all the alterations of the law effected during the year.

COUNTRY SOLICITOR'S PRACTICE. ARCHIBALD'S COUNTRY SOLICITOR'S PRACTICE: A HANDBOOK OF THE PRACTICE IN THE QUEEN'S BENCH DIVISION OF THE HIGH COURT OF JUSTICE, WITH STATUTES AND FORMS. By W. F. A. ARCHIBALD, Esq., Barrister-at-Law. Stevens & Sons.

Mr. Archibald says in his preface that "no substantial part" of the alterations proposed by the Procedure Committee "can be adopted without being submitted to the Legislature," and predicts that "no immediate change in the practice is to be anticipated." We have already pointed out that many of the changes require an Act of Parliament, but that the majority of them do not; we agree, however, that no immediate change is to be anticipated.

The plan of the book is to give a running comment on the various heads of procedure and practice, such as "Matters Preliminary to Action," "Writ of Summons," "The Pleadings," "Preparation for Trial and Trial," in fourteen successive chapters, and then to print at length, first the Judicature Acts, the Rules of Court, with all their forms, then a set of "Additional Statutes, Orders, and Forms," and finally a set of "Additional Forms," we presume, supplied by the author himself. The commentary is extremely well written, Mr. Archibald being quite at home in threading his way through the difficulties raised by Stooke v. Taylor, Ward v. Pilley, Clow v. Harper, and other puzzling cases. In inserting a reference to Beddall v. Maitland (29 W. R. 484), however, in his addenda, he has missed an opportunity of pronouncing for either that case or Original Hartlepool Collieries Company v. Gibb (L. R. 5 Ch. D. 713), and has not even called attention to the difference of opinion between Mr. Justice Fry and the Master of the Rolls appearing from those cases. The chapter relating to Solicitors and Costs contains a clear and concise summary of the enactments and cases, but we do not find any reference to the case of In re Snell (25 W. R. 736, 21 SOLICITORS' JOURNAL, 495), in which the Court of Appeal, reversing the decision of the Master of the Rolls, held that while a solicitor is not justified in taking special journeys at the expense of his client without a special retainer for that purpose, yet such retainer may be shown by subsequent ratification.

The sections and rules are abstracted in the commentary with references to the pages of the appendix, but we miss cross-references from the appendix to the commentary. The addenda are extremely profuse, Occupying over twenty pages. The index is very good. The selection of additional Acts is judicious, and, as far as we can discover, none of the

numerous orders under the Acts has been omitted.

We cannot help thinking that a book which, being called "The Country Solicitor's Practice," is restricted to that branch of the profession, might have been made somewhat less bulky. It would have been a good opportunity, for instance, to have omitted all the forms of pleading scheduled to the Rules of Court. But, on the whole, we think that Mr. Archibald has succeeded in producing a useful and well-arranged book.

[blocks in formation]

This, the second work of the kind which we are called upon to notice, is of a more elaborate design than that which we reviewed a few weeks ago. Every section is examined with scrupulous care, and the opinion of the authors is stated with great frankness. The result has been to adorn the notes with so many remarks, rather suggestive of blame than of commendation, that we think that, if the public has been tempted by what they have read in our columns to indulge in any mutinous feelings of complaint, they will hardly be brought to a more satisfied frame of mind by the comments of Messrs. Clerke and Brett. Their book contains many suggestions which we think not only sound, but likely to be of much practical value to the profession; although we have remarked among them some observations which, though not in themselves unjust, do not entirely convince our judgment. In this class we should, on the whole, be disposed to include a remark, contained in a note upon section 7, to which we have already adverted in our columns. "It seems doubtful," say the authors, "whether in some cases the words or any one through whom he derives title, otherwise than by purchase for value,' properly qualify the covenant, since it would thus seem to extend to the acts of every person in the chain of title who did not take the estate as a purchaser for value," [Quære, ought not this rather to have been, who did not convey the estate, as a vendor, for value ?"] notwithstanding the intervention of a purchase for value." We think that this objection undoubtedly points out a defect in the draftsmanship of the Act, but we do not think that any court would give practical effect to it. But a few objections coming under this head detract but little from the substantial value of the work, which we are inclined to rate very highly. It may be expected to find its way into the hands of a large number of those practitioners who are obliged, at a very short notice, to enter upon the study of this difficult and perplexing Act.

BANKRUPTCY.

[ocr errors]

A CONCISE TREATISE Upon the LAW OF BANKRUPTCY. By E. T. BALDWIN, Barrister-at-Law. SECOND EDITION. Stevens & Haynes.

This is a concise and readable treatise, distinguished from some other concise and readable law books by the care with which the writer has verified his statements. The arrangement of the book, tracing each step in bankruptcy from petition to discharge, is convenient, and a good index enables ready reference to be made to any subject. In the appendix the Acts are given, with marginal references to the page of the book in which the section is discussed. As regards the recent cases, we have examined the work on various subjects and have found all the cases we sought. So recent a case as Crawcour v. Salter (25 SOLICITORS' JOURNAL, 525) is duly noted.

SOLICITOR'S DIARY.

THE SOLICITOR'S DIARY, ALMANAC, AND LEGAL DIRECTORY FOR 1882. Edited by CHARLES FORD, Esq., Solicitor. Waterlow & Sons (Limited). We need not do more than announce the annual issue of this convenient and well-arranged diary.

the ensuing year-viz., Mr. Justice Denman, Mr. Justice Field, and Mr. The following Judges have been selected to try election petitions during Justice Stephen.

Phillimore, upon entering the court, said: I cannot again take my seat in On the first day of the sittings of the Admiralty Division, Sir R. J. this court without first making some reference to the great loss we have sustained in the untimely death of Mr. Clarkson. When the court rose for the Long Vacation he appeared in his usual health and spirits, and I can hardly persuade myself that we shall never see his face or hear his voice again. He will long be remembered as an excellent lawyer and able advocate, who knew thoroughly how to reconcile his zeal in the discharge of his duties to his client with the utmost respect for the court. I am speaking the unanimous opinion of us all when I say that we most deeply and sincerely lament his loss.-Mr. Butt, Q.C., said: I may, perhaps, be allowed to express the satisfaction with which we have all listened to the kindly words your lordship has been pleased to utter concerning one whose ability and skill as an advocate, I do not desire now to speak. Probably Of his thorough knowledge of his profession, of his great those only who, like myself, have been most frequently opposed to him could thoroughly appreciate his powers. What I do wish to bear witness to is this, that, while he never missed a legitimate opportunity of serving his client, he never took an unfair advantage of an adversary. Speaking for myself and those around me-his friends and mine-I would say that we deeply lament the loss of a friend whose manly and generous nature had endeared him to us all, and whose premature death has left a gap in our ranks that cannot readily be filled up.

loss we mourn.

[ocr errors][merged small][ocr errors][ocr errors][ocr errors][ocr errors]

CORRESPONDENCE.

THE CONVEYANCING ACT.

[To the Editor of the Solicitors' Journal.]

Sir,-As Mr. Wolstenholme's colleague, I should be much disposed to offer some remarks on the general and preliminary question-What is the practical value of the criticism you have been publishing? But such remarks would be more appropriate when the criticism had come to an end, of which there seems to be no near prospect. I therefore, at present, only ask you to let me observe shortly on the last article-No. VI.

If the articles which preceded Mr. Wolstenholme's letter had been written in the same tone and style as No. VI., which followed it, Mr. Wolstenholme would have had no ground of complaint in that respect. But your critic cannot, I conceive, be equally complimented on an improvement in the substance of his disquisition. He deals in No. VI. with two new matters-the "all the estate" clause and custody of title deeds. 1. He contends that, under section 63, the "all the estate" clause will be implied in leases, unless negatived. To this contention there are at least three answers, each sufficient:-(a.) Sub-section (2) excludes the implication of any larger estate than the term. (b.) A lease could not operate as a conveyance of the whole fee, unless it contained sufficient words of limitation, as heirs or fee simple. (c.) The intention of the parties would restrict the operation of the deed, on the principle that in a lease the habendum qualifies the general intendment of the premises: Co. Litt.

183a.

[blocks in formation]

[1. Our correspondent ought at least to have read with attention the passage in our article which he does us the honour to criticize. If he had done so he would have seen that we expressly pointed out the operation of sub-section (2) as excluding the operation of sub-section (1), at all events with the aid of an express declaration of intention. He speaks as though we had overlooked sub-section (2). Nor is it the fact that we contended that, under section 63, the "all the estate" clause would be implied in leases, unless negatived. Our words were, "A doubt may be felt whether" it will not be necessary to expressly exclude the operati on of the section. Surely Mr. Reilly does not think that this phrase is equivalent to the expression of a categorical opinion.

"

We will now deal with Mr. Reilly's "three answers, each sufficient." "(a.) Sub-section (2) excludes the implication of any larger estate than the term."-If by "excludes Mr. Reilly means "" excludes, although the intention to exclude is not expressly stated in the deed," he is only stating the proposition which he undertook to prove: a proceeding styled by logicians petitio principii. If he only means that sub-section (2) enables the person making the conveyance to exclude the operation of sub-section (1), we are not concerned to contradict him, seeing that we said the same thing ourselves.

"(b.) A lease could not operate as a conveyance of the whole fee, unless it contained sufficient words of limitation, as heirs or fee simple."Of course, at common law sufficient words of limitation would be required. But our doubt was whether the Act had not, in this respect, overridden the common law. How is this doubt dispelled by telling us what the common law would do, supposing it not to be overridden? “(c.) In a lease the habendum qualifies the general intendment of the premises: Co. Litt. 183a."-That this proposition was true when Lord Coke wrote admits of no doubt. But our correspondent seems to overlook the fact that the 8 & 9 Vict. c. 106 has destroyed the reasoning upon which it was founded. The true source of the proposition is to be found, not in Co. Litt. 183a, but (as the greatest real property lawyer of this century has remarked) in Baldwin's case (2 Rep. 23). Mr. Reilly must be aware that the distinctions drawn between the cases in which the habendum is repugnant and void, and those cases in which the habendum qualifies the grant of a fee in the premisses, turn upon the fact that estates of freehold in possession did not then lie in grant, but needed livery of seisin to pass them. Now that, by the 8 & 9 Vict. c. 106, s. 2, corporeal hereditaments, as regards the conveyance of the immediate freehold, are "deemed to lie in grant as well as in livery," the whole ground of the distinctions is cut away, and the case of a lease seems clearly to fall within a very different proposition, which (Lord Coke tells us) was, in Baldwin's case, "taken and agreed for good law "viz., "when to things which take their essence and effect by the delivery of the deed without other ceremony, and which lie in grant, there is such limitation as in the case at bar, the habendum was repugnant and void."

We think our readers will agree with us that Mr. Reilly cannot be complimented on the success of his three answers to the first objection. We will now consider his second point.

[ocr errors]

2. Mr. Reilly seems to think that a 'person who receives and after wards retains possession of documents" is properly described by the bare phrase, a person who retains possession of documents." We are

[ocr errors]

not able to agree with him. But we would beg leave to remind him that it would, at all events, have cost only a single sweep of the pen to remove the doubt by writing "retains or receives in the Act.-ED. S. J.]

THE SOLICITORS' REMUNERATION ACT, 1881. [To the Editor of the Solicitors' Journal.] Sir,-Your correspondents are not at all premature in calling attention to this subject.

It is not only those of us who are mainly conversant with small transactions to whom it is important. The bulk of the profession, occupying a middle position between these and the comparatively few who deal mainly with large transactions, are deeply interested in having things settled on a fair basis-fair all round.

question of remuneration is the important and interesting one for us. I am not ashamed to write, what I have always freely said, that this The glories of horsehair never fired my ambition, nor do I deeply sympathize with the plaintive appeals we hear from time to time for the more What I do care about is to be paid respectful treatment of solicitors. fairly and on a rational principle for the work which I do, not because I like it, but because I have to live by it.

The recent Act seems to have a wide scope, embracing not only conveyancing but "other non-contentious business," and I think it would be quite worth the while of those of us who are not thinking of going to the bar to consider this question, and exchange notions respecting it.

THE LAW SOCIETY AND LAW REFORMS. [To the Editor of the Solicitors' Journal.]

X.

Sir,-You are probably aware that the council has, in fulfilment of the promise made at the adjourned special meeting of the society held on the 20th of May last, called a special general meeting for Friday, the 18th inst., to consider the report of the Legal Procedure Committee. This meeting is summoned for two o'clock in the afternoon. This hour is probably the most convenient for the senior members, who form the few, but it is certainly two hours at least earlier than will be convenient to the great majority of the members who may desire to attend the meeting, and take an active part in its deliberations, and so contribute that experience and knowledge which is absolutely essential if the society is to arrive at a just and a sound conclusion respecting the various important matters to which the report refers.

I am quite sure that the meeting has not been convened at this hour with the desire exclusively to suit the senior members, but because it has hitherto been the habit for the society to meet at this unsuitable hour. It should not, however, be forgotten that the junior members of the profession are far more interested in the proposed reforms with respect to solicitors' remuneration and the matters referred to in the committee's report than many of the seniors, some of whom before long will necessarily cease to practise. Besides which it is very important to secure the presence at a meeting of this kind of those who are day by day actively engaged in the duties of their profession, if it is to result in real good.

Hitherto, in consequence of our annual and other meetings having been held at this early hour, the discussion has frequently been left in the hands of Mr. Kimber, Mr. Ford, Mr. Macarthur, or others of the profession, who are entitled to our thanks for having thus taken up a position which could not be occupied by others, but who would not for single moment pretend that they always represented the general feelings of those who were unavoidably and reluctantly compelled to be absent.

At the recent Brighton meeting, the president, Mr. Druce, very properly invited the meeting to express its decision on certain questions relating to bills of sale, indicating at the same time that the council were much divided on the matter, and that they would desire to have the advantage of ascertaining the views of the members at the meeting in question.

It cannot be doubted that in a body constituted like the council a great difference of opinion is likely to arise on most of the matters referred to in the committee's report, and also in fixing solicitors' remuneration. It would, therefore, seem most expedient and wise for the council at the proposed meeting to offer to discuss the different recommendations contained in the report, and invite its decision seriatim thereon, not with the view that such decision should necessarily bind the council, but as an evidence of the feeling of the meeting upon the particular points. It will be quite impossible for this to be done at Friday's meeting, and I therefore suggest that after the transaction of some formal matters of business, as, for instance, settling the course to be adopted, the meeting should be adjourned until the following week, to be held not earlier than four o'clock in the afternoon, and that it should be definitely given out, and thoroughly understood, that the council are anxious to learn the views of the profession on the different points, so that those who have hitherto abstained from attending these meetings may be induced to put in an appearance, and be made to feel that in taking an active part in the

meeting, and even in criticising the council's action, they are acting only within their right, which the council would wish to be exercised in the freest manner. How on earth is a member, anxious to be present at the meeting, but engaged in a heavy case at Westminster or elsewhere, where his presence is an absolute necessity, and who is in no way responsible for the case having been fixed for the 18th inst., to attend the meeting at two? Is the case to be adjourned, or is the meeting to be deprived of what may be the benefit of this member's wise counsel and matured experience? Surely not! Why not, then, fix the meeting at such an hour as when all who are invited may reasonably be expected to be able to attend? The council has now an available opportunity for taking into its confidence the members of the profession generally; and in their interests, and in the interests of the society, and in the interests of the public, I earnestly trust that this opportunity will not be lost.

There are some active members on the council, like Mr. Hollams, Mr. Clabon, Mr. Grinham Keen, Mr. Walters, and Mr. Lake, who should, in matters of this kind, insist upon their voices and influence being heard if they hope to retain that confidence which has hitherto been so wisely intrusted to them, and which, it is to be hoped, they will still continue to justify.

The meeting should partake of the nature of a conference, in which the elected were meeting the electors, simply with a view to arrive at the wisest and safest conclusion upon matters respecting which differences of opinion must necessarily prevail, but as to which it is most important to ascertain what are the views generally of those present. The council must not grudge the necessary time. The matters for consideration are worthy of patient and careful deliberation. If necessary for the convenience of country members, let it be known that the society can meet from day to day.

I am exceedingly glad that attention is being drawn to the settlement of the remuneration of those solicitors whose practice and experience is to a very large extent confined exclusively to business involving comparatively small amounts. It has been previously stated in your valuable journal that a fear exists that the interests of these members of the profession-who, by the way, are in a decided majority-may perhaps be unintentionally overlooked. There can be no excuse for their interests being unprotected or insufficiently studied now that attention has been so forcibly drawn to them. Then, Sir, inasmuch as a great majority of the members cannot meet at four o'clock in the afternoon, and remain, perhaps, in discussion until ten o'clock at night, without some opportunity for obtaining certain refreshments, I do hope that the members of the Club Committee-who, by the way, pay no rent for the rooms occupied by the club-will, on the occasion of the proposed and subsequent meetings, exercise a generous liberality towards members of the society who may not be members of the club, and permit all those who may be at the meetings in question to avail themselves of the club for the purpose of necessary refreshment, without having to leave the hall to go to the nearest coffee tavern to satisfy the cravings of nature.

The fact is the society has now a grand opportunity for presenting a united front, and for helping to remove, to some extent, that apathy which still prevails and still operates to prevent that perfect union which only needs to be once established, so as to secure that attention to the just requirements of the profession in which the interests of our clients, the public, are so materially involved.

I do most earnestly and seriously trust that these few lines, so imperfectly expressed, will come under the eyes of some of the members of the council, and that I shall not have put my pen to paper without producing some satisfactory result.

The course which should be adopted would be for the president, on Friday, the 18th inst., to state that the meeting had been called at two o'clock, in accordance with the usual practice of the society; that it would probably have to be summoned again, and that it could then meet at four, and sit as late as might be deemed expedient, and that the council would gladly welcome the decision of the meeting on each point of the committee's report, to be expressed by way of recommendation, and would be prepared to afford every facility to the members to express impartially their views, and that the council anxiously desired that the members generally would attend the meeting, and give expression to their sentiments, and that for the convenience of the meeting, he was authorized to state that the Club Committee were willing, during the meeting, to receive any members of the society on the same terms as if they were members of the club. November 9.

AN OLD MEMBER OF THE SOCIETY.

[merged small][merged small][merged small][ocr errors]

CASES OF THE WEEK.

SOLICITOR-COSTS-CHARGING ORDER "PROPERTY RECOVERED OR PRESERVED "-SOLICITORS' ACT, 1860 (23 & 24 VICT. c. 127), s. 28.—In a case of Emden v. Carte, before the Court of Appeal on the 3rd inst., a question arose as to the right of a solicitor, under section 28 of the Solicitors Act of 1860, to a charging order for costs upon "property recovered or preserved " by means of an action. The action was brought by an undischarged bankrupt claiming a large sum of money which he alleged to be due to him by way of remuneration for professional services as an architect, rendered by him to the defendant, and also damages for wrongful dismissal by the defendant, and some further relief. The services in question had been, in fact, rendered after the commencement of the bankruptcy, of which, however, the defendant was ignorant. The action was brought without the knowledge of the trustee in the bankruptcy. The writ was issued in June, 1880. On the 15th of November the defendant delivered a statement of defence, by which he denied that he was under any legal liability to the plaintiff, but at the same time said that, if he was, the largest amount to which the plaintiff could, on his own showing, be entitled was £360. And the defendant, on delivering his defence, paid the sum of £360 into court. On the 19th of November the plaintiff took out a summons, asking that the £360 might be paid out to him, and on the 24th of November the trustee, to whose knowledge the action had just come, took out a similar summons, asking that the £360 might be paid out to him. Before these summonses had been heard the trustee took out another summons, asking for an order substituting him as plaintiff in the action for the bankrupt, on the ground that the right to recover the sums claimed was vested in him and not in the bankrupt. The bankrupt resisted this application, on the ground that the claim was in respect of the proceeds of his personal labour, the right to which did not devolve on the trustee. Fry, J., held (29 W. R. 600, L. R. 17 Ch. D. 169) that the right to both the remuneration and the damages claimed was vested in the trustee, and he made an order adding the trustee as a coplaintiff in the action. This order was afterwards affirmed by the Court of Appeal (L. R. 17 Ch. D. 768). Between the making of this order by Fry, J., and the hearing of the appeal, the solicitor who had acted for the bankrupt in the action took out a summons, asking for a declaration that he was entitled, as the solicitor employed by the bankrupt in the prosecution of the action, to a charge on the £360 for his taxed costs of or in reference to the action as such solicitor, and that the same might be taxed and paid to him out of the £360. On the hearing of this summons it was urged on the solicitor's behalf that he was entitled to the unlimited order for which he asked, and only says that "it shall be lawful" for the court to make the order, those which was in fact in the very terms of section 28, and that, though the section words are imperative in an Act relating to the establishment of a right. On taxation the taxing master would only allow proper costs. On behalf of the trustee it was contended that the effect of making an order in the unlimited form asked for would be to give the solicitor a charge on the fund in respect of the costs incurred in resisting the trustee's claim to be made a party to the action, and that this would be most unjust. But the trustee offered to consent to an order giving the solicitor a charge for his costs down to the date of the payment into court. The solicitor would not accept this offer, and thereupon Fry, J. (29 W. R. 840) dismissed his summons with costs. His lordship was of opinion that the money in court had not been "recovered or preserved" within of obtaining a payment, not to the trustee, but to the bankrupt, which would the meaning of section 28, inasmuch as the action had been brought with the view have been the actual result had not the bankrupt's summons for payment to him of the money in court been intercepted by the intervention of the trustee. The Court of Appeal (JESSEL, M.R., and BAGGALLAY, BRETT, and LINDLEY, L.JJ.) held that the £360 was "property recovered or preserved" by means of the action, and that the solicitor was entitled to a charge upon it for his taxed costs of the action down to the date of the intervention of the trustee. JESSEL, M. R., thought that Fry, J., had been misled by the argument adduced to bim, that under the terms of the Act an unlimited order must be made, the result of which would be to give the present applicant a charge for all the costs whether properly or improperly incurred; in fact, a charge for the cost of resisting the trustee's claim to be made a party to the action. The Master of the Rolls, however, thought that section 28 was capable of a rational construction. Under the Judicature Act money could be paid into court by a defendant who, at the same time, denied his liability to the plaintiff altogether, and the plaintiff was entitled to take the money out, and to keep it as his own; and if there was a sum of money in court in an action, which the plaintiff had only to ask for in order to get it, surely it was his money, and it was "recovered or preserved" by the action. Then the question was whether, under section 28 of the Solicitors Act, the judge was bound to make an order simply giving the solicitor a charge on the property recovered or preserved," which would give him a charge for all the costs of the action. The words of the section were not as clear as they might have been; but it could not have been intended that the judge should give the solicitor an unlimited charge on the property recovered or preserved. Of course it could only mean a charge on property recovered or preserved through the solicitor's instrumentality. Then for what was he to have a charge? Obviously it must be for some costs due to him, and the judge had to direct for what costs the charge was to be given. This was shown by the latter part of the section. The charge must be for the taxed costs of the solicitor. It could not mean his costs whether properly or improperly incurred. That would be making nonsense of a remedial provision. It must mean costs properly incurred, and it was the duty of the judge so to limit the order. In the present case an unlimited order would work gross injustice; it would give the bankrupt's solicitor out of the trustee's fund the costs of opposing the trustee's successful claim. But the judge ought to have given the solicitor a charge for his costs of the action up to the time when the trustee intervened. The trustee took the benefit

« PreviousContinue »