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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.”
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. And since we can see 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.
IX.-As to TRUSTS.
We propose now to group together the provisions of the Act THE PRACTICAL EFFECT OF THE
relating to trustees and executors. The object of section 30 (which
applies only in cases of death after the commencement of the Act) CONVEYANCING ACT.
is to extend the provisions of section 4 of the Vendor and PurVIII.-PRODUCTION AND SAFE CUSTODY OF TITLE DEEDS chaser Act, 1874, and section 48 of the Land Transfer Act, 1875 (continued).
(which are repealed), and, as so extended, to render them compulThe section upon which, at the close of our last article, we made the devolution of the trust or mortgage estate would undoubtedly
To take from trustees and mortgagees the power of directing some remarks, deals with two distinct kinds of contract—(1) an
The point acknowledgment of the right to the production of documents and sweep away considerable expense and litigation. the delivery of copies, by the section styled "an acknowledg- first clause of the first sub-section provides that:
we have to consider is how far that object has been attained. The ment”; and (2) an undertaking for safe custody of documents. This last is not expressly styled “ an undertaking,” but the section, “Where an estate or interest of inheritance, or limited to the heir as special without the formality of a definition, by degrees slips into occupant, in any tenements or hereditaments, corporeal or incorporeal, is denoting it by the single word. These contracts must be in vested on any trust, or by way of mortgage, in any person solely, the same
shall, on his death, notwithstanding any testamentary disposition, devolve to writing, but they seem to need no other formality. We can dis- and become vested in his personal representatives or representative from time cover nothing to restrict the documents to documents of title to to time, in like manner as if the same were a chattel real vesting in them or land; or to restrict the occasions on which such contracts can be bim.” made to sales or conveyances; or to restrict the relation subsisting Before we consider how far devises of trust and mortgage between the parties to the relation of vendor and purchaser, or to estates have been rendered nugatory, we shall make one or two any other definite relation. The following points seem to be not observations on the language of the section. The first thing to unworthy of attention :
be observed is that the draftsman has here abandoned his defini. The duties imposed by an "acknowledgment” and an “under- tion of “lands," which term, by section 2 (ii.), is to include, unless taking,” respectively, are onerous; moreover, by sub-section (2) the a contrary intention appears, “lands of any tenure, and tenements person entitled to their benefit has the right to enforce specific and hereditaments, corporeal or incorporeal.” The reason for this performance of the obligations imposed by an “ acknowledgment”; may have been an intention to keep copyholds outside the section ; and though sub-section (5) provides that he shall pay the costs and but this object might have been more clearly attained by an express expenses, it does not provide that these must be paid before the statement that the section should not apply to hereditaments of this specific performance can be enforced. But the burden of tenure. The next point to observe is that the literal construction these obligations is perhaps more easily shifted than the of the words of the section approaches an absurdity.
Where an burden of the covenant in common use; sub-sections (2) and estate “is vested on any trust . : in any person solely, the (9) provide that an “acknowledgment” and an “undertaking," same shall, on his death,” devolve to his personal representatives. respectively, shall “ bind each individual possessor or person so The most obvious time to which to refer the words is vested," long only as he has possession or control” of the documents. would be the time of the creation of the trust; in which case it Suppose a vendor,“ retaining” possession of title deeds relating would follow that, whenever a settlement of land has at its comto property other than the property sold, should execute what we mencement been constituted with a single trustee, the lands will will take the liberty to style a pro formâ mortgage of the said devolve at his death upon his personal representatives, although other property, in consideration of the sum of ten shillings, and in the meantime the property has been vested in himself and new should hand over the title deeds to the mortgagee. The mortgagor trustees. If this construction be thought too absurd to be adopted, would then certainly not “ have possession
thereof”; we shall take leave to complain that we have too often been left to and we submit that he could not, with any propriety, be said to such a consideration for our chief guidance. No obscurity would
have control” of them. In the elaborate list of “obligations” have hung over the phrase, “ Where at the death of any person, set forth in sub-section (4), we find nothing whereby the “ person an estate, &c., is vested on any trust in him solely, &c.” entitled to request production ” is enabled to compel the mortgagor are easily able to imagine phraseology much more clear than the to disclose the name of the mortgagee. Neither do we find any- somewhat ludicrous provision that the estate shall on the death of thing to oblige him against his will to exercise for the benefit of the trustee devolve to his personal representatives from time to anybody else his right under section 16 to inspect and copy the time. title deeds in the mortgagee's hands.
But these suggestions are merely by the way. What is the Our object in pointing out how to evade these obligations is not effect of the provision that the estate shall, “ notwithstanding any to recommend evasion of them to the reader, but to illustrate testamentary disposition, devolve to and become vested in ” the what we take to be the section's great defect. It does not, so far “personal representatives or representative from time to time, as we can see, oblige a person who has given an “acknowledg- in like manner as if the same were a chattel real vesting in them ment” or “undertaking” to another person, and who afterwards or him”? In what manner does a chattel real bequeathed by a delivers the documents to somebody else, to give the name of this testator vest in the executor? It vests in him, of course, until
SUBSTANCES OF A LIKE NATURE.
assent, and after assent it vests in the legatee. If the executor
PETROLEUM. 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 Petroleum Acts, which first began to be passed in 1852, were for å the new legislation will by no means be to render nugatory a long time temporary, but they were practically made perpetual by the devise of trust and mortgaged estates, for upon the assent of the Petroleum Act, 1879 (42 & 43 Vict. c. 47), which by section 4 enacts executor the estates would seem to vest in the devisee of trust that the Petroleum Act, 1871, “shall continue in force until otherwise estates. It might be thought that this view is strengthened by a directed by Parliament.” This stereotyping of the law has, we suppose, consideration of the next clause of the sub-section, which runs as caused that careful examination of it by which it was discovered that follows:
the hawking of petroleum was rendered impracticable if not illegal. So “And accordingly all the like powers, for one only of several joint the present statute enacts that " any person who is licensed in pursuance personal representatives, as well as for a single personal representative, and of the Petroleum Act, 1871, to keep petroleum to which that Act applies for all the personal representatives together, to dispose of and otherwise deal with the same, shall belong to the deceased's personal representatives may, subject to the enactments for the time being in force with respect or representative from time to time, with all the like incidents, but subject to to hawkers and pedlars, hawk such petroleum by himself or his servants.” all the like rights, equities, and obligations, as if the same were a chattel | The Acts 50 Geo. 3, c. 41, 52 Geo. 3, c. 108, 24 & 25 Vict. c. 21, the real vesting in them or him."
Pedlars Act, 1871, and the Pedlars Act, 1881, are the enactments now in But the last clause of the section provides that,
force with respect to hawkers and pedlars. The three first-named Acts "for the parposes of this section, the personal representatives, for the concern the Inland Revenue only; the Act of 1871 prescribes that “ no time being, of the deceased, shall be deemed in law his heirs and assigns, person shall act as a pedlar" without a certificate from the chief officer within the meaning of all trusts and powers.”
of police of his district, such certificate to be granted to any person “ who The effect of this we take to be to enable the personal repre- has during one month previous to such application " resided in the sentatives of the deceased trustee to execute the trusts and powers district, on the officer“ being satisfied that the applicant is above seven. in all cases in which they might be executed by his heirs teen years of age, is a person of good character, and in good faith and assigns.” But does the clause contain anything to incap- intends to carry on the trade of a pedlar.” The Act of the present acitate his actual heirs and assigns from so acting, if otherwise session gives the certificate an effect " within any part of the United authorized ? Does it say that the personal representatives are to
Kingdom.” be deemed the only heirs and assigns of the deceased for the pur
The Act upon which we are commenting contains minute regulations poses of the section? Or might the personal representatives, by assenting to a devise of the trust estates, constitute the devisee of as to the amount of petroleum which each hawker may hawk, the closed such estates a trustee ?
vessels " he must use, the construction of his carriage [i.e., as defined in 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 LEGISLATION OF THE YEAR,
SUNDAY CLOSING OF PUBLIC-HOUSES.
EXPIRING LAWS CONTINUANCE.
CAP. 70.-AN ACT TO CONTINUE VARIOUS EXPIRING LAWS. This Act, after reciting that the provisions in force against the sale This statute continues twenty-seven Acts of Parliament until the 31st of fermented and distilled liquors during certain hours of Sunday have of December, 1882, which, but for the continuance, would have expired, been found to be attended with great public benefits, and it is expedient, in accordance with the Expiring Laws Continuance Act, 1880, on the 31st and the people of Wales are desirous, that, in the Principality of Wales, of December, 1881. Among the Acts "continued,” the more important those provisions be extended to the other hours of Sunday, enacts that in are 3 & 4 Vict. c. 82, by which stock-in-trade is exempted from poor rates, the said Principality “all premises in which intoxicating liquors are sold the Locomotive Acts, the Ballot Act, 1872, the Corrupt Practices Acts, or exposed for sale shall be closed during the whole of Sunday.” A and the Parliamentary Elections Act. A "continued Act
of great second section applies the “ Licensing Acts, 1872-1874.” A third section theoretical importance is the Militia Ballots Suspension Act (28 & 29 fixes —or rather attempts to fix-a date for the commencement of the Vict. c. 46). The necessities of the Militia have been so long provided Act. A fourth section repeats the saving for railway travellers which for by voluntary enlistment that it is little known that compulsory is contained in the Licensing Act, 1874; a fifth gives a “short title,” and enlistment by ballot is still the law, except as suspended by the Suspen. that is all. We bave all read in the public prints that contradictory sion Act, annually continued since 1863. 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
The late Mr. William Coleman Gill, solicitor (of the firm of Gill & day next
Bush, of Bath), has by his will bequeathed a legacy of nineteen guineas appointed "; and finally that a former Home Secretary (Lord Aberdare, to the Solicitors' Benevolent Association, of which he was a life member who piloted the Act through the House of Lords) “writing from Verona, from its foundation in 1858. without a copy of the Act before him," equally declines to give a cate
Amongst the business to be considered at the meeting of the Common gorical opinion. “There is a great deal to be said on both sides," but Council to be held next week is a motion by Mr. W. J. Fraser, which has we adhere to the opinion which we have previously expressed that the been altered as follows :-“That it be referred to the Law and City operation of the Act will not be delayed for a year. The exact words of Courts Committee to inquire and report to this court, as soon as practicthe section (which formed part of the original Bill introduced early in able, as to the delay, and expense to which in some cases citizens and
others who may be judgment creditors are subjected in obtaining from the session) are these :-" This Act shall commence and come into opera- sheriffs' officers (except those of the City of London) and county court tion with respect to each division or place in Wales on the day next bailiffs moneys received by them in respect of executions levied ać the appointed for the holding of the general annual licensing meeting for suit of such creditors, and the best means to be adopted for insuring the that division or place.” Now the Act passed on the 27th of August. By more speedy payment of all such moneys to the parties entitled thereto, the 1st and 2nd sections of the Licensing Act, 1828 (9 Geo. 4, c. 61), the with power to confer thereon with the Right Hon. the Lord High Chan
cellor, Citizen and Mercer." meeting in question must be held on some day between the 20th of
The following (says the Kentucky Law Journal) is the initiatory paraAugust and the 14th of September, at a day, hour, and place appointed graph, literally and with punctuation, transcribed from a brief lately preat least twenty-one days beforehand. Surely Parliament may be said to sented by an attorney to a high court sitting in Kentucky :-"The desire have presumed, at the time of the passing of the Act, that all the appoint- of Counsel to free your Honor, from an oral argument of length suggested, ments had been already made ; inasmuch as where made after the pass- and the appearing fatigue caused, by preceding matters prevented full
by the continuity of arduous laborg since the commencement of the term ing of the Act, the appointed days would be at least three days later verbality, at the time upon the Propositions of Law-agreement and facts than their legal date,
shown, by the pap-rs of the controversy, as would otherwise have done,”
THE CONVEYANCING ACT.
THE CONVÉYÂNCING AND LAW OF PROPERTY Act, 1881, TOGETHER WITH
THE VENDOR AND PURCHASER Act, 1874, AND THE SOLICITORS' REMUNĖRA. FISHER'S DIGEST.
TION ACT, 1881. With Notes, and an Introduction. By AUBREY FISHER'S DIGÈST OF THE REPORTED DecisioNS IN ALL THE COURTS, INCLUD- St. JOHN CLERKE and THOMAS BRETT, Barristers-at-Law. Butter
ING A SÉLECTION FROM THE IRISH, FROM HILARY TERM, 1870, to Easter worths. Vacation, 1880. Consolidated and arranged by T. W. CHITTY, Esq., This, the second work of the kind which we are called upon to notice, is and J. Mews, Esq., Barristers-at-Law. Two volumes. H. Sweet.
of a more elaborate design than that which we reviewed a few weeks ago. A DIGEST OF THE REPORTED DecisioNS OF ALL THE Courts, INCLUDING A Every section is examined with scrupulous care, and the opinion of the
SELECTION FROM THE IRISH (BEING A CONTINUATION OF FISHER's Digest) authors is stated with great frankness. The result has been to adorn the DURING THE YEAR 1880. By T. W. CHITTY, Exq., and J. Mews, Esq., notes with so many remarks, rather suggestive of blame than of commenBarristers-at-Law. H, Sweet.
dation, that we think that, if the public has been tempted by what they Fisher's Digest is too well known to need any introduction to our have read in our columns to indulge in any mutinous feelings of comreaders. No one who has seen the frequent reference which men plaint, they will hardly be brought to a more satisfied frame of mind by in large practice at the common law bar are in the habit of the comments of Messrs. Clerke and Brett. Their book contains many sugmaking to it, can doubt its enormous value to the practitioner. gestions which we think not only sound, but likely to be of much The continuation of the Digest from 1870 to 1880 has this great practical value to the profession ; although we have remarked among feature, that for the first time the Digest is complete, and includes them some observations which, though not in themselves unjust, do not all the cases, both common law and chancery. The advantage of entirely convince our judgment. In this class we should, on the whole, be the arrangement adopted in the book is obvious. Take, for instance, disposed to include a remark, contained in a note upon section 7, to the case of a practitioner who wants to know what decisions there which we have already adverted in our columns. “It seems doubtful,” have been since 1870 with reference to what companies will be wound up. say the authors, “ whether in some cases the words or any one through All he has to do is to take down the volume, turn to the head “Compuny," whom he derives title, otherwise than by purchase for value,' properly and run his eye down the synopsis at the commencement of that head ; qualify the covenant, since it would thus seem to extend to the acts of he finds at once what he wants under the sub-heads“ Winding up," every person in the chain of title who did not take the estate as a pur"What Companies." He turns to the page referred to at this place, and chaser for value," [Qucere, ought not this rather to have been, who there he has all the cases arranged with clear italic headings. In the last did not convey the estate, as a vendor, for value ?”] notwithstanding the volume, including all the cases for 1880, we find several improvements. intervention of a purchase for value.” We think that this objection un. Numérous cross-references have been added, important dicta have been doubtedly points out a defect in the draftsmanship of the Act, but we do inserted, and the list of cases overruled is no longer confined to those not think that any court would give practical effect to it. But a few which are referred to in the head-notes of the reports. As references to objections coming under this head detract but little from the substantial new statutes and rules have also been added, the reader has before him value of the work, which we are inclined to rate very highly. It may be all the alterations of the law effected during the year.
expected to find its way into the hands of a large number of those prac. titioners who are obliged, at a very short notice, to enter upon the study
of this difficult and perplexing Act. COUNTRY SOLICITOR'S PRACTICE. ÅRCHIBALD'S COUNTRY SOLICITOR'S PRACTICE: A HANDBOOK OF
BANKRUPTCY. PRACTICE IN THE QUEEN'S BENCH DIVISION OF THE High COURT OF A CONCISE TRÉATISE UPON THE LAW OF BANKRUPTCY. By E. T. BALDWIN, JUSTICE, WITH STATUTES AND FORMS. By W. F. A. ARCHIBALD, Esq., Barrister-at-Law. SECOND EDITION. Stevens & Haynes. Barrister-at-Law. Stevens & Sons.
This is a concise and readable treatise, distinguished from some other Mr. Archibald says in his preface that "no substantial part ” of the concise and readable law books by the care with which the writer has alterations proposed by the Procedure Committee " can be adopted with verified his statements. The arrangement of the book, tracing each step out being submitted to the Legislature," and predicts that “no im- in bankruptoy from petition to discharge, is convenient, and a good index mediate change in the practice is to be anticipated.” We have already enables ready reference to be made to any subject. In the appendix the pointed out that many of the changes require an Act of Parliament, but Acts are given, with marginal references to the page of the book in which that the majority of them do not; we agree, however, that no immediate the section is discussed. As regards the recent cases, we have examined change is to be anticipated.
the work on various subjects and have found all the cases we sought. The plan of the book is to give a running comment on the various So recent a case as Crawcour v. Salter (25 SOLICITORS' JOURNAL, 525) is heads of procedure and practice, such as "Matters Preliminary to Action,” duly noted. "Writ of Summons," "The Pleadings,” “ Preparation for Trial and Trial," in fourteen successive chapters, and then to print at length, first
SOLICITOR'S DIARY. 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 THE SOLICITOR'S DIARY, ALMANAC, AND LEGAL DIRECTORY FOR 1882. Forms,” we presume, supplied by the author himself. The commentary
Edited by CHARLES FORD, Esq., Solicitor. Waterlow & Sons (Limited). is extremely well written, Mr. Archibald being quite at home in thread. We need not do more than announce the annual issue of this coning his way through the difficulties raised by Stooke v. Taylor, Ward v. venient and well-arranged diary. 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 Oollieries Company v. Gibb (L. R. 5 Ch. D. 713), the ensuing year-viz., Mr. Justice Denman, Mr. Justice Field, and Mr.
The following Judges have been selected to try election petitions during and has not even called attention to the difference of opinion between Justice Stephen. Mr. Justice Fry and the Maste of the Rolls appearing from those cases. The chapter relating to Solicitors and Costs contains a clear and concise 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. summary of the enactments and cases, but we do not find any reference this court without first making some reference to the great loss we have to the case of In re Snell (25 W. R. 736, 21 Solicitors' JOURNAL, 495), sustained in the untimely death of Mr. Clarkson. When the court rose in which the Court of Appeal, reversing the decision of the Master for the Long Vacation he appeared in his usual health and spirits, and I of the Rolls, held that while a solicitor is not justified in taking can hardly persuade myself that we shall never see his face or hear his special journeys at the expense of his client without a special retainer voice again. He will long be remembered as an excellent lawyer and able for that purpose, yet sach retainer may be shown by subsequent advocate, who knew thoroughly how to reconcile his zeal in the discharge ratification.
of his duties to his client with the utmost respect for the court. I am The sections and rules are abstracted in the commentary with refer- speaking the unanimous opinion of us all when I say tbat we most deeply ences to the pages of the appendix, but we miss cross-references from the and sincerely lament his loss.-Mr. Butt, Q.C., said : I may, perhaps, be appendix to the commentary. The addenda are extremely profuse, allowed to express the satisfaction with which we have all listened to the occupying over twenty pages. The index is very good. The selection of kindly words your lordship has been pleased to utter concerning one whose additional Acts is judicious, and, as far as we can discover, none of the ability and skill as an advocate, I do not desire now to speak. Probably
Of his thorough knowledge of his profession, of his great numerous orders under the Acts has been omitted. We cannot help thinking that a book which, being called " The could thoroughly appreciate his powers. What I do wish to bear witness
those only who, like myself, have been most frequently opposed to him Country Solicitor's Practice,” is restricted to that branch of the profes- to is this, that, while he never missed a legitimate opportunity of serving sion, might have been made somewhat less bulky. It would have been a his client, he never took an unfair advantage of an adversary. Speaking good opportunity, for instance, to have omitted all the forms of pleading for myself and those around me-his friends and mine-I would say that scheduled to the Rules of Court. But, on the whole, we think that we deeply lament the loss of a friend whose manly and generous nature had Mr. Archibald bas succeeded in producing a useful and well-arranged endeared him to us all, and whose premature death has left a gap in our book.
ranks that cannot readily be filled up.
not able to agree with him. But we would beg leave to remind him that CORRESPONDENCE.
it would, at all events, have cost only a single sweep of the pen to re
move the doubt by writing "retains or receives” in the Act.Ed. S. J.] THE CONVEYANCING ACT.
[To the Editor of the Solicitors' Journal.] Sir,--As Mr. Wolstenholme's colleague, I should be much disposed to
THE SOLICITORS' REMUNERATION ACT, 1881. offer some remarks on the general and preliminary question
[To the Editor of the Solicitors' Journal.] the practical value of the criticism you have been publishing? But such remarks would be more appropriate when the criticism had come to an
Sir,– Your correspondents are not at all premature in calling attention end, of which there seems to be no near prospect. I therefore, at present,
to this subject. only ask you to let me observe shortly on the last article-No. VI.
It is not only those of us who are mainly conversant with small transIf the articles which preceded Mr. Wolstenholme's letter had been actions to whom it is important. The bulk of the profession, occupying written in the same tone and style as No. VI., wbich followed it, Mr.
a middle position between these and the comparatively few who deal Wolstenholme would have had no ground of complaint in that respect. mainly with large transactions, are deeply interested in having things But your critic cannot, I conceive, be equally complimented on an improve- settled on a fair basis—fair all round. ment in the substance of his disquisition. He deals in No. VI. with two
I am not ashamed to write, what I have always freely said, that this new matters—the “all the estate" clause and custody of title deeds.
question of remuneration is the important and interesting one for us. 1. He contends that, under section 63, the “all the estate" clause will be The glories of horsehair never fired my ambition, nor do I deeply sym. implied in leases, unless negatived. To this contention there are at least pathize with the plaintive appeals we hear from time to time for the more three answers, each sufficient:-(a.) Sub-section (2) excludes the implica- respectful treatment of solicitors. What I do care about is to be paid tion of any larger estate than the term. (6.) A lease could not operate fairly and on a rational principle for the work which I do, not because I as a conveyance of the whole fee, unless it contained sufficient words of like it, but because I have to live by it. limitation, as heirs or fee simple. (c.) The intention of the parties would
The recent Act seems to have a wide scope, embracing not only con. restrict the operation of the deed, on the principle that in a lease the veyancing but “other non-contentious business,” and I think it would be habendum qualifies the general intendment of the premises : Co. Litt. quite worth the while of those of us who are not thinking of going to 183a.
the bar to consider this question, and exchange notions respecting it. 2. I am unable to see why “the purchaser of the largest lot and
X. recipient of the title deeds," as your critic describes him, being also the continuing holder of them, should not come within the terms of the section, as a person who retains possession of documents.
THE LAW SOCIETY AND LAW REFORMS. Westminster, Nov. 9.
F. S. REILLY.
[To the Editor of the Solicitors' Journal.] [1. Our correspondent ought at least to have read with attention the Sir, —You are probably aware that the council has, in fulfilment of the passage in our article which he does us the honour to criticize. If he had promise made at the adjourned special meeting of the society held on done so he would have seen that we expressly pointed out the operation of the 20th of May last, called a special general meeting for Friday, the sub-section (2) as excluding the operation of sub-section (1), at all events 18th inst., to consider the report of the Legal Procedure Committee. This with the aid of an express declaration of intention. He speaks as meeting is summoned for two o'clock in the afternoon. This hour is though we had overlooked sub-section (2). Nor is it the fact that we probably the most convenient for the senior members, who form the few, contended that, under section 63, the "all the estate" clause would be but it is certainly two hours at least earlier than will be convenient to implied in leases, unless negatived. Our words were, “A doubt may be the great majority of the members who 'may desire to attend the felt whether" it will not be necessary to expressly exclude the operation meeting, and take an active part in its deliberations, and so contribute of the section. Surely Mr. Reilly does not think that this phrase is that experience and knowledge which is absolutely essential if the society equivalent to the expression of a categorical opinion.
is to arrive at a just and a sound conclusion respecting the various We will now deal with Mr. Reilly's "three answers, each sufficient.” important matters to which the report refers.
“(a.) Sub-section (2) excludes the implication of any larger estate than I am quite sure that the meeting has not been convened at this hour the term.”—If by "excludes” Mr. Reilly means excludes, although with the desire exclusively to suit the senior members, but because it has the intention to exclude is not expressly stated in the deed,” he is only hitherto been the habit for the society to meet at this unsuitable hour. stating the proposition which he undertook to prove : a proceeding styled It should not, however, be forgotten that the junior members of the by logicians petitio principii. If he only means that sub-section (2) profession are far more interested in the proposed reforms with respect enables the person making the conveyance to exclude the operation of to solicitors' remuneration and the matters referred to in the committee's sub-section (1), we are not concerned to contradict him, seeing that report than many of the seniors, some of whom before long will we said the same thing ourselves.
necessarily cease to practise. Besides which it is very important to “(6.) A lease could not operate as a conveyance of the whole fee, secure the presence at a meeting of this kind of those who are day by unless it contained sufficient words of limitation, as heirs or fee simple.”- day actively engaged in the duties of their profession, if it is to result in Of course, at common law sufficient words of limitation would be re- real good. quired. But our doubt was whether the Act had not, in this respect, Hitherto, in consequence of our annual and other meetings having been overridden the common law. How is this doubt dispelled by telling us held at this early hour, the discussion has frequently been left in the hands what the common law would do, supposing it not to be overridden ? of Mr. Kimber, Mr. Ford, Mr. Macarthur, or others of the profession, who
"(c.) In a lease the habendum qualifies the general intendment of the are entitled to our thanks for having thus taken up a position which premises : Co. Litt. 183a.”—That this proposition was true when Lord could not be occupied by others, but who would not for single moment Coke wrote admits of no doubt. But our correspondent seems to over- pretend that they always represented the general feelings of those who look the fact that the 8 & 9 Vict. c. 106 has destroyed the reasoning upon were unavoidably and reluctantly compelled to be absent. which it was founded. The true source of the proposition is to be found, At the recent Brighton meeting, the president, Mr. Druce, very pro. not in Co. Litt. 183a, but (as the greatest real property lawyer of this perly invited the meeting to express its decision on certain questions century has remarked) in Baldwin's case (2 Rep. 23). Mr. Reilly must relating to bills of sale, indicating at the same time that the council were be aware that the distinctions drawn between the cases in which much divided on the matter, and that they would desire to have the the habendum is repugnant and void, and those cases in which the advantage of ascertaining the views of the members at the meeting in habendum qualifies the grant of a fee in the premisses, turn upon the question. fact that estates of freehold in possession did not then lie in grant, but It cannot be doubted that in a body constituted like the council a great needed livery of seisin to pass them. Now that, by the 8 & 9 Vict. c. difference of opinion is likely to arise on most of the matters referred to 106, 8. 2, corporeal hereditaments, as regards the conveyance of the im. in the committee's report, and also in fixing solicitors' remuneration. It mediate freehold, are "deemed to lie in grant as well as in livery,” the would, therefore, seem most expedient and wise for the council at the whole ground of the distinctions is cut away, and the case of a lease proposed meeting to offer to discuss the different recommendations con. seems clearly to fall within a very different proposition, which (Lord tained in the report, and invite its decision seriatim thereon, nct with Coke tells us) was, in Baldwin's case, “taken and agreed for good law”- the view that such decision should necessarily bind the council, but as viz., “when to things which take their essence and effect by the an evidence of the feeling of the meeting upon the particular points. It delivery of the deed without other ceremony, and which lie in grant, will be quite impossible for this to be done at Friday's meeting, and I there is such limitation as in the case at bar, the habendum was repugnant therefore suggest that after the transaction of some formal matters of and void.”
business, as, for instance, settling the course to be adopted, the meeting We think our readers will agree with us that Mr. Reilly cannot be com- should be adjourned until the following week, to be held not earlier than plimented on the success of his three answers to the first objection. We four o'clock in the afternoon, and that it should be definitely given out, will now consider his second point.
and thoroughly understood, that the council are anxious to learn the views 2. Mr. Reilly seems to think that a person who receives and after of the profession on the different points, so that those who have hitherto wards retains possession of documents" is properly described by the abstained from attending these meetings may be induced to put in an bare phrase, a "persou who retains possession of documents. We are 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
CASES OF THE WEEK. 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
SOLICITOR-Costs_CHARGING ORDER-"PROPERTY RECOVERED OR Pre. his presence is an absolute necessity, and who is in no way responsible served"-SOLICITORS' Acr, 1860 (23 & 24 Vict. c. 127), s. 28.—In a case for the case having been fix for the 18th inst., to attend the meeting of Emden v. Carte, before the Conrt of Appeal on the 3rd inst., a question at two ? Is the case to be adjourned, or is the meeting to be deprived of arose as to the right of a solicitor, under seccion 28 of the Solicitors Act of 1860, what may be the benefit of this member's wise counsel and matured expe- to a charging order for costs upon “ property recovered or preserved” by means rience ? Surely not! Why not, then, fix the meeting at such an hour of an action. The action was brought by an undischarged bankrupt claiming as when all who are invited may reasonably be expected to be able to a large sum of money which he alleged to be due to him by way of remuneraattend? The council has now an available opportunity for taking into its tion for professional services as an architect, rendered by him to the defendant, confidence the members of the profession generally ; and in their interests, and also damages for wrongful dismissal by the defeodant, and some further and in the interests of the society, and in the interests of the public, relief. The services in question had been, in fact, rendered after the commenceI earnestly trust that this opportunity will not be lost.
ment of the bankruptcy, of which, however, the defendant was ignorant. The There are some active members on the council, like Mr. Hollam.s, Mr. The writ was issued in June, 1880. On the 15th of November the defendant
action was brought without the knowledge of the trustee in the bankruptcy. Clabon, Mr. Grinham Keen, Mr. Walters, and Mr. Lake, who should, in delivered a statement of defence, by which he denied that he was under any matters of this kind, insist upon their voices and influence being heard if legal liability to the plaintiff, but at the same time said that, if he was, the they hope to retain that confidence which bus hitherto been so wisely largest amount to which the plaintiff could, on his own showing, be entitled intrusted to them, and which, it is to be hoped, they will still continue was £360. And the defendant, on delivering his defence, paid the sum of to justify.
£360 into court. On the 19th of November the plaintiff took out a summons, The meeting should partake of the nature of a conference, in which asking that the £360 might be paid out to him, and on the 24th of November the elected were meeting the electors, simply with a view to arrive at the the trustee, to whose knowledge the action had just come, took out a similar wisest and safest conclusion upon matters respecting which differences of summons, asking that the £360 might be paid out to him. Before these sum. opinion must necessarily prevail, but as to which it is most important to monses had been heard the trustee took out another summons, asking for an ascertain what are the views generally of those present. The council order substitutiog him as plaintiff in the action for the bankrupt, on the must not grudge the necessary time. The matters for consideration are
ground that the right to recover the sums claimed was vested in him and not worthy of patient and careful deliberation. If necessary for the con
in the bankrupt. The bankrupt resisted this application, on the ground that venience of country members, let it be known that the society can meet which did zot derolve on the trustee. Fry, J., held (29 W. R. 600, L. R. 17
tha claim was in respect of the proceeds of his personal labour, the right to from day to day.
Ch. D. 169) that the right to both the remuneration and the damages claimed I am exceedingly glad that attention is being drawn to the settlement
was vested in the trustee, and he made an order adding the trustee as a coof the remuneration of those solicitors whose practice and experience is plaintiff in the action. This order was afterwards affirmed by the Court of to a very large extent confined exclusively to business involving compara- Appeal (L. R. 17 Cb. D. 768). Between the making of this order by Fry, J., tively small amounts. It has been previously stated in your valuable and the bearing of the appeal, the solicitor who had acted for the bankrupt journal that a fear exists that the interests of these members of the pro- in the action took out a summons, asking for a declaration that he was entifession-who, by the way, are in a decided majority—may perhaps be tled, as the solicitor employed by the bankrupt in the prosecution of the unintentionally overlooked. There can be no excuse for their interests action, to a charge on the £360 for his taxed costs of or in reference to the being unprotected or insufficiently studied now that attention has been action as such solicitor, and that the same might be taxed and paid to him so forcibly drawn to them.
out of the £360. On the hearing of this summons it was urged on the solici. Then, Sir, inasmuch as a great majority of the members cannot meet
tor's behalf that he was entitled to the unlimited order for which he asked, and at four o'clock in the afternoon, and remain, perhaps, in discussion until 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 ten o'clock at night, without some opportunity for obtaining certain words are imperative in an Act relating to the establishment of a right. On refreshments, I do hope that the members of the Club Committee--who, taxation the taxing master would only allow proper costs. On behalf of the by the way, pay no rent for the rooms occupied by the club—will, on the trustee it was contended that the effect of making an order in the unlimited occasion of the proposed and subsequent meetings, exercise a generous form asked for would be to give the solicitor a charge on the fund in respect liberality towards members of the society who may not be members of of the costs incurred in resisting the trustee's claim to be made a party to the the club, and permit all those who may be at the meetings in question to action, and that this would be most unjust. But the trustee offered to consent avail themselves of the club for the purpose of necessary refreshment, to an order giving the solicitor a charge for his costs down to the date of the without having to leave the hall to go to the nearest coffee tavern to payment into court. The solicitor would not accept this offer, and thereupon satisfy the cravings of nature.
Fry, J. (29 W. R. 810) dismissed his summons with costs. His lordship was of The fact is the society has now a grand opportunity for presenting a
opinion that the money in court had not been “recovered or preserved" within united front, and for helping to remove, to some extent, that apathy of obtaining a payment, not to the trustee, but to the bankrupt, which would
the meaning of section 28, inasmuch as the action bad been brought with the view which still prevails and still operates to prevent that perfect union which have been the actual result had not the bankrupt's summons for payment to only needs to be once established, so as to secure that attention to the him of the money in court been intercepted by the intervention of the trustee. just requirements of the profession in which the interests of our clients, The Court of Appeal (Jessel, M.R., and BAGGALLAY, Brett, and Lindler, the public, are so materially involved.
L.JJ.) held that the £360 wag “ property recovered or preserved” by means I do most earnestly and seriously trust that these few lines, so ime of the action, and that the solicitor was entitled to a charge upon it for his perfectly expressed, will come under the eyes of some of the members of the taxed costs of the action down to the date of the intervention of the trustce. council, and that I shall not have put my pen to paper without producing Jessel, M. R., thought that Fry, J., had been misled by the argument adduced some satisfactory result.
to bim, that under the terms of the Act an unlimited order must be made, The course which should be adopted would be for the president, on
the result of which would be to give the present applicant a cbarge for all Friday, the 18th inst., to state that the meeting had been called at two the costs whether properly or improperly incurred ; in fact, a charge for the o'clock, in accordance with the usual practice of the society; that it would cost of resisting the trustee's claim to be made a party to the action. The probably have to be summoned again, and that it could then meet at Master of the Rolls, however, thought that section 28 was capable of a four, and sit as late as might be deemed expedient, and that the council court by a defendant who, at the same time, denied his liability to the
rational construction. Under the Judicature Act money could be paid into would gladly welcome the decision of the meeting on each point of the plaintiff' altogether, and the plaintiff was entitled to take the money out, committee's report, to be expressed by way of recommendation, and and to keep it as his own; and if there was a sum of money in court in an would be prepared to afford every facility to the members to express im- action, which the plaintiff had only to ask for in order to get it, surely it partially their views, and that the council anxiously desired that the was his money, and it was "recovered or preserved” by the action. Then members generally would attend the meeting, and give expression to the question was whether, under section 28 of the Solicitors Act, the their sentiments, and that for the convenience of the meeting, he was judge was bound to make an order simply giving the solicitor a charge on authorized to state that the Club Committee were willing, during the the property recovered or preserved,” which would give him a charge for meeting, to receive any members of the society on the same terms as if all the costs of the action. The words of the section were not as clear as they were members of the club.
they might have been ; but it could not have been intended that the judge November 9. AN OLD MEMBER OF THE SOCIETY.
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 It is stated that, owing to Lady Holker's delicate state of health, Sir shown by the latter part of the section. The charge must be for the taxed John and Lady Holker are about to proceed to the South of France for the costs of the solicitor. It could not mean his costs whether properly or winter months.
improperly incurred. That would be making nonsense of a remedial provi. It is stated that Lord Selborne is so much improved in health that his judge so to limit
sion. "It must mean costs properly incurred, and it was the daty of the medical advisers allowed him to travel up to town on Wednesday to trang. act some important official business.
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 The Illinois Supreme Court (says the Pacific Coast Law Journal) has just judge ought to have given the solicitor a charge for his costs of the action decided that a female may be a Master in Chancery.
ap to the time when the trustep intervened. The trustee took the benefit