« PreviousContinue »
The Solicitors' Journal.
LONDON, FEBRUARY 25, 1882.
come to the conclusion that the deposits have in many instances been altogether lost sight of.
THE ROLE COMMITTEE of Judges, consisting of the Lord
ord! THE AUTHORITY of the House of Commons to expel members Chancellor, the Lord Chief Justice, the Master of the Rolls, Sir
for any reason, good or bad, or for no reason, or without assigning JAMES HANNEN, Lord Justice LINDLEY. Baron Pollock, and any reason, is undoubted. It is, however, usual to assign a Justices MANISTY and Fry, met at half-past ten o'clock on
reason. Among the more salient instances of expulsion are those Wednesday last to consider the Report of the Procedure Com
of Mr. WILKES for seditious libel in 1764 and 1769; of Colonel mittee. The learned judges continued in deliberation until four
CAWTHORNE, for “ conduct unbecoming an officer and a gentleo'clock, but did not complete their consideration of the Report.
man,' in 1796; and of Mr. SADLEIR—the most recent case-for The sitting will be resumed on Wednesday next.
fraud, in 1856. It is equally undoubted that the expulsion creates no disability for re-election (May Parl. Pr., 8th ed., p. 60). The expulsion of Mr. BRADLAUGH for disobedience to the order of the
House renders unimportant the question of whether he has taken WE PRINT in another. column the order of re-transfer to which the oath imperfectly, but it seems that for the parliamentary oath we referred last week as then impending. The effect is to restore at all events no administration of it by another person is required, to Mr. Justice CHITTY all his causes and matters, except those
and that a member may legally “swear himself.” The which were recently transferred to Vice-Chancellor Bacon. Parliamentary Oaths Act, 1866, merely directs that the oath
thereby appointed “shall be solemnly and publicly made and sub
scribed by every member of the House of Commons at the table MR. C. P. ILBERT, the new legal member of the Council in the middle of the said House, and whilst a full House of of the Viceroy of India, wiil enter on his duties on the Commons is there duly sitting, with their Speaker in his chair, at 13th of April next. Her Majesty's subjects in India are such hours and according to such regulations as each House may, to be congratulated on the appointment to this high office of by its Standing Orders, direct." The only Standing Order on the one of the most able and skilful of the modern school of subject (May 8, 1866), prescribes that “members may take and parliamentary draftsmen. Mr. ILBERT is the author of (among subscribe the oath required by law at any time before the orders many other measures) the Act constituting the Central Office of the day and notices of motion have been entered upon, or after of the Supreme Court, and the rules and forms under that Act; they have been disposed of, but no debate or business shall be of the Act constituting the Railway Commission, and of all the interrupted for that purpose." Whether the interposition of an Merchant Shipping Acts since 1870. He is also well known as officer might have been legally required or not, it certainly has the draftsman of the Bankruptcy Bill of last session, and it is not been required by this order. In this respect the parliamentary understood that he has in hand, and will complete before his oath differs from almost every other, for, as will be seen by a departure, the consolidating Bankruptcy Bill to be introduced reference to 6 Geo. 4, c. 87 (administration of oath by consul); during the present session.
1 & 2 Vict. c. 105 (persons bound by oaths administered in any form deemed by themselves binding); 14 & 15 Vict. c. 99, s. 16 (adminis
tration of oath by courts generally), and especially the Promissory THE UNANIMOUS ADOPTION by the large meeting of the Oaths Act, 1868; these Acts, one and all, imply, if they do not Incorporated Law Society on Wednesday of the report of the expressly require, the interposition of an officer. Especially is Committee on Legal Procedure is the best testimony that could this the case with the Act of 1868, which directs (see first part of be given to the singular care and ability with which that schedule) that the oath to be taken by certain high officials “is report has been prepared, and the admirable constitution of the to be tendered by the clerk of the Council, and taken in presence of committee as representing all shades of opinion. Since the report her Majesty in Council, or otherwise as her Majesty shall direct.” was published we have heard dissents from some of the recom- Mr BRADLAUGH, it is stated, swore himself upon a copy of the mendations on points of detail, but in no instance we have heard Revised Version of the New Testament. It has been questioned of has there been any feeling other than satisfaction with the whether the oath so taken is valid, but we think that it is. report as a whole. The committee may be congratulated on A Jew is sworn on the Pentateuch, a Chinaman on a broken having produced a report which is recognized on all hands as saucer, and a Hindoo by touching the shoulder of a Brahmin. thoroughly worthy of a great occasion, and which can hardly fail 10 have an important influence on the deliberations of the Rule Committee of Judges.
WE DO NOT CLAIM, and never have claimed, any sort of infallibility for the criticisms which we have felt it our duty to
make on the provisions of the Conveyancing Act, 1881 ; but since It is now more than six years since suitors were required to we were subjected for some weeks to a continuous cannonade from deposit £20 with the registrar before setting down an appeal from great and little guns, with the object of driving us from our The Court of Chancery. These sums of £20, which were always positions, we may be excused if we regard with satisfaction the paid into an appeal deposit account with the Chancery Paymaster, proofs which come to hand that, in the opinion of impartial obwere, in the ordinary course of events, ordered to be paid out to scrvers, we were not altogether wrong in our strictures. The Birmthe successful party on the appeal, either by way of returning the ingham Law Society is well known to contain among its leading amount deposited to a successful appellant, or paying it to a members some of the ablest real property lawyers and most skilful successful respondent in part payment of his costs. Notwith- conveyancers to be found in the solicitor branch of the profession. standing the lapse of so much time since these deposits ceased to The annual reports of its committee are always taken as be made, there is still remaining in court, according to the state- representing the considered opinion of conveyanciog solicitors; ment of our correspondent “ II. R." (of whose accuracy we have consequently their observations on questions relating to the Conno doubt), no less a sum than £2,500. All appeals brought before , veyancing Act have been awaited with special interest We November, 1875, have long ago been disposed of, and we can only refer elsewhere to the remarks on mortgages, and will only add here that upon some points which we raised relating that the registrars of the inferior courts are to issue certificates to conveyances the society agree with us. They say that of judgments obtained therein upon the application of the party “ general words may be omitted, in reliance on section 6, in all who has recovered judgment; that the registration of the certificases where it is unnecessary to have a regrant of an easement cate is to have the effect of a judgment of the court in which it which may have been extinguished by unity of possession.” is registered; that the courts are to have the same control over Covenants for title, they think, may be omitted in reliance on the certificates of the judgments as they have over judgments section 7, “but until the Act be amended, or the ambiguous themselves in their own courts (see, as to this, Part v. Scannell, 9 clause, ‘notwithstanding anything by the person who so conveys, Ir. C. L. 426), and that costs are not to be allowed in actions on or anyone through whom he derives title, otherwise than by pur- judgments“ unless the court in which such action shall be chase for value,' be judicially interpreted not to extend to the acts brought shall otherwise order.” The only section of the Act of of every person in the chain of title, who did not acquire the 1868 which is not reproduced in the Bill is section 5, which property conveyed as a purchaser for value, it will be advisable to enacts that it shall not be necessary for a plaintiff resident in one take advantage of sub-section 7, and limit the covenant to the of the three kingdoms, and bringing an action on a judgment in acts and defaults of the vendor if he be a purchaser for value, or either of the others, to find security for costs “ unless on special those through whom he derives title, up to, and inclusive of, the grounds the court shall otherwise order.” The Bill is one to last purchaser for value.” And with regard to conditions of sale, which no reasonable objection can be taken. The very wide the society are advised “that it is not necessary or wise to make, definition of “inferior court” might, perhaps, have been alarming at present, any material alteration in the common form conditions.” if it had not been provided by section 28 of the County Court Mr. WILLIAM BARBER, Q.C., who gives this advice, was one of Act, 1867, that inferior courts “not of record” are to yield up the conveyancers to whom the Conveyancing Bill was referred for their jurisdiction to county courts, and if the Borough and Local suggestions before its re-introduction, and, we believe, cannot be Courts of Record Act, 1872 (35 & 36 Vict. c. 86), had not introconsidered an unfriendly critic; yet it appears that even he dare duced many wholesome reforms into local courts “ of record.” The not trust the implied conditions of sale.
measure, however, might, perhaps, be improved by a schedule of courts, other than the courts named, to which it is intended to
apply. The Tolzey Court of Bristol, the Court of Passage at IN CONNECTION with the recent well-meant attempt of the Liverpool, the Court of Requests at Salford, the Provost Court at jurors, or some of them, to procure the pardon of a convict by a Exeter, and last, though not least, the Mayor's Court of London ;disclosure of the secrets of the jury-box, it may be well to point these are more or less known as inferior courts of record. But are out that the law very much discourages any disclosure of the kind. there not some others? We have an impression that the Court In the case of grand jurors, the oath is to keep secret “the of the Savoy still remains, having a jurisdiction of about one Queen's counsel, his fellows, and his own," and it was at one time hundred square yards. felony in a grand juror to disclose the King's counsel (27 Ass. pl. 63). Petty jurors take no such oath, but it is clear that the spirit of the law is against disclosure. In civil cases their cvidence is not receivable to prove their own misbehaviour, or to prove that a
THE FORM OF MORTGAGE. verdict which they delivered was given through mistake (Best on We discussed some weeks ago the question of what should the be Evidence, citing Straker v. Graham, 4 M. & W. 721, and other form of mortgage, looking at the matter from the voint of view of cases), for, it is said, “ The allowing a juryman to prove the real or
a practitioner disposed, as far as possible, to cut down the leugth pretended misbehaviour or mistake of himself or his companions
of these instruments. We pointed out that the statutory form in would open a wide door to fraud and malpractice in cases where schedule 3 had been practically abandoned even by its putative it is sought to impeach verdicts.” In the United States it appears
father, and that its want of adaptability to the circumstances of that the rule is generally the same, that the testimony of a juror
particular cases would be a bar to its adoption in any but the very is inadmissible to impeach a verdict (Read v. Commonwealth, 22
simplest transactions. We added that the form of mortgage in Gratt. 924; Commonwealth v. Drew, 4 Mass. 391). In Tennessee, I schedule 4 was in many respects unnecessarily cumbrous, and we however, the English rule appears to be rejected altogether
showed how it might be improved in terseness and clearness of (Crawford v. State, 2 Georg. 60), and in one or two other States
expression. With regard to the implied powers given by the Con" the affidavits of jurors will sometimes be received for the purpose
veyancing Act, we came to the conclusion that a mortgagee might of explaining, correcting, or enforcing a verdict” (Dana v. Tucker,
safely allow them to come into operation, with the exception of 4 Johns. 487). In Iowa they have even been admitted to prove a the power of leasing (section 18), which ought always to be exdecision by lot (Wright v. Illinois Telegraph Company, 20 Iowa,
pressly excluded, and the restriction on consolidation (section 17), 19), and that the instructions of the court were misunderstood
which probably would always be excluded. We also threw out a (Pickard v. United States, 1 Iowa, 225). We have been unable suggestion that it might be desirable to try to exclude or qualify to discover any authorities as to criminal cases in this country,
section 5, which enables a mortgagee to be redeemed behind his but we make no doubt that the recommendation to mercy is the
back. only recognized mode by which a juryman can qualify the judg. We happen to know that our observations were extensively ment of the court which follows upon the verdict which he is
canvassed at the time, and met with a good deal of question sworn to give.
among the Conveyancing Company (Limited), who (as the Times some time ago informed the world) had bound themselves by a
solemn league and covenant to adopt, we suppose in their enTHE BILL which it is proposed to call, in the event of its tirety, the provisions of the Conveyancing Act. Since our passing, “ The Inferior Courts Judgments Extension Act, 1882,” is, observations were published we have had several opportunities of mutatis mutandis, a pretty exact copy of the Judgments Extension considering in practice the matter we discussed, and of obtaining Act, 1868 (31 & 32 Vict. c. 54). The scope of the Act of 1868 | the opinion of many practitioners not belonging to the very limited is “to render judgments or decreets obtained ” in the superior company aforesaid. We find that the cowse we suggested is now courts “ in England, Scotland, and Ireland respectively, effectual very generally adopted at Lincoln’s-inn; and, on full consideration, in any other part of the United Kingdom," and the scope of the we see no reason to alter or modify the views we expressed, exBill of 1882 is, as is explained in the preamble, “ to extend the i cept, perhaps, with regard to our hint as to section 5. The opinion principle of the Judgments Extension Act, 1868, to the judgments seems to be general that no chief clerk will allow the absurd proof certain inferior courts of Great Britain and Ireland." The ex- vision that the court may, “ without any notice to the incumpression “ inferior courts” in the Bill is to include " county courts, brancer," declare the mortgaged land to be freed from the incivil bill courts, and all courts in England and Ireland having cumbrance, to come into operation; and that it is hardly necessary jurisdiction to hear and determine civil causes, other than the to make any express provision in a mortgage based upon the High Courts of Justice, and in Scotland the sheriffs' courts and improbable contingency of a contrary course being taken. We the courts held under the Small Debts and Debts Recovery Acts;" think there is reason in this opinion, and that, although a cautious and following the lines of the Act of 1868, it is proposed to enact practitioner may make a mortgagor covenant to give notice to the mortgagee of any intended application to the court under section and the lessees covenanted to wall off the land so demised from 5, no great harm is likely to arise from the omission of such a the rest of the estate with a wall seven feet high. The project of provision.
using the demised land for a school fell through, and the defendThe report of the Birmingham Law Society, which we print ants disposed of the land for other purposes, and the wall was elsewhere, shows that the conclusions of the most experienced never built. The defendants refused to build the wall, on the and competent members of the branch of the profession most ground that the covenant to do so was dependent on the continconcerned with the preparation of mortgages accord with the gency of the school for the blind being built. The court had views we expressed. The society recommend that “ short forms held otherwise, and consequently it became necessary to assess similar to those in the 4th schedule should be used in preference the damages, which was done upon a writ of inquiry before to the statutory forms in the 3rd schedule.” They think that the the under-sheriff. The under-sheriff allowed evidence of what covenants and power of sale may be omitted in reliance on sections it would have cost to erect the wall to go to the jury, and 7 and 19. They consider that “ the operation of the 18th section, this was complained of as misdirection. It appeared probable enabling either mortgagor or mortgagee in possession to grant from the evidence that, in the events that had happened, the leases should, as a general rule, be excluded, at least so far as the value of the rest of the estate was, if at all decreased by the mortgagor is concerned.” With regard to excluding the 17th non-erection of the wall, at any rate only decreased to an section, although they would be well content that the right to amount far less than that which it would have cost to erect consolidate should be abolished altogether, except in cases where the wall. The court held that the cost of the wall was not a the mortgagor expressly charges the first security with the second true test of the damages, but that the test was the pecuniary mortgage debt, they very properly point out that, so long as con- amount of the difference between the plaintiffs' position upon solidation is allowed by law in other cases, “a solicitor will be the breach of the covenant and what it would have been upon expected to see that a mortgagee is not deprived of any right performance of the covenant, and they consequently set aside the which the law gives him.”
verdict of the jury and made the rule absolute for a new inquiry. It may be worth while, since it now appears that the practice There are no questions more difficult than questions with regard of excluding the operation of sections 17 and 18 is becoming estab-to the measure of damages. It is obvious that, if the true test of lished, to draw attention to one or two matters relating to such damages is the pecuniary difference made to the plaintiff by the breach exclusion which are likely to be overlooked. In the first place, it of contract, the court is right. But whichever test is adopted, certain is considered doubtful whether a mere declaration that those unsatisfactory consequences will follow. The argument against sections are not intended to apply to the mortgage will be suffi. the view that the cost of performance is the correct test is very cient to satisfy the provision of the Act requiring “a contrary strong. That view, of course, is based on the notion that the intention " to be expressed. There must, it is apprehended, be plaintiff ought to be put in a position to do for himself that which an affirmative contrary intention expressed. Hence, in order to the defendant ought to have done. Against that it is urged that exclude the “restriction on consolidation," there must not only this, in effect and indirectly, amounts to very much the same be a statement that section 17 of the Conveyancing Act, 1881, thing as specific performance. If the plaintiff desires and claims “is not intended to apply to this mortgage," but also a statement the very thing contracted for, he must go for specific performance ; that, in respect of the consolidation of securities, the rights of the and then if the case is one in which equity considers that justice mortgagee shall be the same in all respects as if the said section requires this course, and that the rights and interest of the plaintiff had never been enacted, or some other provision to that effect. cannot be adequately protected without it, equity will order the Similarly, with regard to section 18, there must be a statement performance of the contract; but if the plaintiff elects to proceed that, “ in respect to letting or leasing the said premises or any for damages—in other words, for pecuniary compensation-he can part thereof, the rights and powers of the mortgagor [and of the only get the damage to himself pecuniarily estimated. The mortgagee respectively] shall be the same in all respects as if consequences might otherwise be almost absurd. In theory the section had never been enacted.” And it must not be for- (though of course in practice it is not often so) the disproportion gotten that, since this latter contrary intention is to be “ex- between the value of the thing contracted for and the cost of its pressed by the mortgagor and mortgagee in the mortgage deed,” performance might be enormous. It might cost a million to do any mortgage excluding the provision as to leases should be that which would not be worth a penny when done. And the executed by the mortgagee.
most convincing argument appears to be that the plaintiff who would recover the million is not bound to apply it to the purpose
of carrying out the thing contracted for. He can put it in his MEASURE OF DAMAGES.
pocket. This would be obviously too absurd. In the case under
discussion it seemed possible that the building of the wall would A SOMEWHAT interesting point on the question of measure of be mere waste of money, and that the estate would not be benefited damages has recently been decided by the Queen's Bench Divi- a penny thereby, and that the plaintiffs, therefore, would not sion. The point is briefly this—viz., whether, apart from what think of applying the money recovered to the erection of a wall. may be called consequential damage, the true measure of damages It is clear under such circumstances that it would be the height of is what it would cost to perform the broken contract, or the injustice that they should recover the cost of erecting the wall. pecuniary damage to the plaintiff? Of course it may frequently On the other hand, arguments more or less attractive are not happen that the two tests coincide, in which case no discussion wanting in support of the other view. It may be urged that a of the principle is likely to arise ; for instance, in the case of a man has no right to purchase compulsorily, so to speak, the right breach of contract to deliver goods, the damage is the difference of breaking his contract at a less sum than it would have cost between the contract price of the goods and the value of such him to perform it, and so to reap a positive benefit from his goods in the market at the time when the contract was finally breach of contract. If he has a right to do so the obvious result broken ; and, again in the case of a covenant to repair demised is that, in every case where the pecuniary damage of non-performpremises, the reversion will generally be damaged to the amount ance is less than the cost of performance, the contractor has the which it would cost to execute the repairs contemplated by the power of breaking his contract with impunity, so far as an action covenant. It will thus be found that in a great number of cases for damages is concerned. In other words, there would in such a no such question as that now under discussion can arise, or at case be no effective legal remedy as distinguished from the equitany rate assume much practical importance; but there are cases able remedy by specific performance. It may be said that cases in which the difference between the two tests may be very great ; may well arise in which, though the breach of contract has not and the question thus raised seems to us to be one of much pecuniarily damaged the plaintiff to an amount equal to what it interest and difficulty.
would have cost to perform the contract, yet the plaintiff ought In the case which suggests these observations, Wigsell v. Cor- obviously to have damages calculated with reference to the amount poration of the School for the Indigent Blind (not yet reported), which it would cost to put him in the same position as if the the plaintiffs' predecessor in title had demised a piece of land, contract had been fulfilled. Suppose, for instance, I have a piece forming part of a larger estate, to the defendants, who at that of land, and I wish to have built upon it a house of a certain time contemplated the erection thereon of a school for the blind, size and shape. A builder contracts with me to build such a
house, but builds a larger or differently shaped house. I may be in just the same, or even a better, position pecuniarily. The land and house as built may even be worth more in the market than the land and house as contracted for. I may have particularly ACKNOWLEDGMENT OF DEEDS BY MARRIED WOMEN. wished for a small house and large garden. The alteration in
[To the Editor of the Solicitors' Journal.] have trenched upon the garden. Of course such a case Sir -The late Lord Chancellor has re-introduced the clauses in the would be hardly likely to arise, because the builder would Conveyancing Bill of last year which were eliminated in the Commons. not be likely to build a larger or more expensive house than that Among these is, I presume, the clause to render acknowledgments no contracted for, but other cases might perhaps arise involving the longer necessary. I hope the Law Society and the provincial societies same principle. The building owner would seem in justice to be will again oppose this projected change. entitled to say. You have not supplied me with the building Il There have been cases, to my knowledge, where the married woman contracted for; it is immaterial to me that the one you have
has, on full explanation of her position, refused to part with her interest built is worth as much or more.
in her property at the request of her husband, and I recently heard a
In justice you ought to pay Lady of rank express her approval of the present state of the law, on the what it would cost to alter the building to what was contracted
occasion of her being called upon to make an acknowledgment. Indeed, I for. Suppose the building owner to have actually employed have never heard of any objection on the part of a married woman to the someone to effect this alteration. Ought not the amount of the propriety of making one. In the interests of married women who may bill to be recoverable from the builder ?
be entrapped by bad husbands into stripping themselves, and with them These arguments have a good deal that is very taking in them, their children, of, perhaps, their only future source of subsistence, I but, on the whole, it seems to us that if a hard and fast rule is to venture to think the proposal bad and uncalled for. be laid down in favour of one or other of these tests, the sounder
A COMMISSIONER. and juster view is that where compensation by way of damages is the remedy sought for, the damages must be estimated by the
THE MIDDLESEX REGISTRY. pecuniary damage done, and that there should be no tertium quid
[To the Editor of the Solicitors' Journal.] between the remedy by such compensation and the remedy by
Sir,Would you, in your next issue, tell us what the Middlesex Registry specific performance. But we are not quite clear that it is
Bill is, the second reading whereof was, I see, by to-day's “Parliamentary
Notices,” fixed for this evening? well that the rules as to measure of damages should be too rigid.
be too rigid. If it is only some question of " officials " it is unimportant, but if it is We cannot help thinking that, though in general the pecuniary la remodelling of the whole concern, which is badly wanted, I do hope damage ought to be the test, there are cases in which, the stipula- it has been based somewhat on the lines of the new general registration tion broken having been a reasonable one, and the plaintiff having which I suppose will before long be enacted. If it were so done the been obliged to perform it himself, he ought to be entitled to
experiment in one county would be a useful experience. T. P. Y. recover the cost of so performing it, whether or no such cost was
London, Feb. 20. equal to the pecuniary difference between his position if the con
[The Bill was not in print up to the time of our going to press.
Ed. 8. J.] tract had been performed and his position when it was broken. On the other hand, we cannot help thinking that if, without
CHANCERY APPEAL DEPOSITS. performing the contract for himself, the plaintiff proceeds for damages, he ought to be restricted to the pecuniary damage
[To the Editor of the Solicitors' Journal.] actually caused.
Sir,Having occasion recently to draw up an order made in 1874 on appeal from the Court of Chancery for the return of an appeal deposit, I was surprised to find that there is as much as £2,500 still standing to
the appeal deposit account in the books of the Chancery Paymaster. What REVIEWS.
are the one hundred and odd solicitors about who are each of them content
to leave £20 in court which may be had for the asking? H. R. CHANCERY PRACTICE.
Chancery-lane, Feb. 23.
The Times on Wednesday, commenting on the report of the Committee MATTERS. By ARTHUR UNDERHILL, Barrister-at-Law. Butterworths.
on Procedure of the Incorporated Law Society, says that, “regarded as a This work in our opinion very well fulfils the expectation which it whole, the proposals are conceived in the belief that what is for the good holds out in the preface, by attaining to something beyond a mere of the public is, in the long run, good for solicitors. The committee do outline, while it lays no claim to be a complete treatise, or to deal with not make an empty boast when they say 'they thoroughly recogulze the minutice of practice. The style is most laudably clear, and the the interests of the public and of the profession are the same-viz., to arrangement marks so conspicuously the divisions and sub-divisions of
obtain a competent judicial decision at the least expense and in the shortest the subject as to make an index almost superfluous. Though it will
u time possible. We should like so-called law reformers who are fond of naturally be read more by the student than by the practitioner, yet the
carping at lawyers and broaching offhand amendments to point to any
efforts at amateur legislation so thorough and careful as this report, latter may often find it a useful help to refresh his memory. The parts
Solicitors may refer to it with pride as evidence of the spirit of enlighten. · which treat of the practice in chambers perhaps aroused our interest
ment to be found in their ranks. ... The committee's report - a more strongly than any others : that being a topic upon which informa.
document which a thoroughgoing law reformer such as Bentham might tion is not abundant or very easily attainable. In expressing the read with approval-will tend to strengthen the confidence reposed by the opinion that students will be the chief readers of the book, we can also public in the body of solicitors:" say with pleasure that in our opinion they will find it very useful.
Last Thursday (says the Calcutta Correspondent of the Times, telegraphing on the 19th inst.) the Legislative Council, in spite of the
protests of the Press and the generally adverse opinion of the public, Some members of the profession attended a private meeting held at
passed two more of the Codifying Bills-viz., those relating to the transfer one of the rooms at the hall of the Incorporated Law Society, Chancery
of property and easements. The first.named measure is applied to the
whole of India, except the Punjab and British Burmah, but power is lane, on Thursday evening last. Mr. F. K. MUNTON, on the motion
reserved to the local Governments te extend it to those provinces by of Mr. W. J. FRASER, C.C., seconded by Mr. V. I. CHAMBERLAIN, took notification. It is also provided that nothing in one of the most important the chair. After a long discussion, and a statement of many cases which chapters of the Act shall be deemed to affect any rule of the Hindoo, had come under the personal observation of the speakers, the following Mahomedan or Buddhist laws. It follows, therefore, that the application resolution was unanimously adopted :-" That the beneficial effect of of the Act will be very partial ; but that of the other, the Easements Act, speedy judgments under order 14 is greatly neutralized by the difficulties will be still more partial. That measure has been rejected by every and delays to which in many cases plaintiffs are subjected in obtaining administration in India, except those of Madras, the Central Provinces, from sheriffs and their officers the proceeds of executions, and in the
and Coorg ; and the Act, therefore, applies only to these provinces. It was opinion of this meeting it is desirable that the question should be re.
proposed to insert in this Act also a clause authorizing the other local ferred to the society's special Procedure Committee for consideration
Governments to extend it to their respective territories by notification, but and report to the council. Further, that a copy of this resolution be
on the motion of the Lieutenant-Governor of Bengal this was omitted, so
that further legislation and a full public discussion will be necessary before forwarded to the chairman of such committee.”
any wider application can be given to the new code. This novel system of According to Kemp's Mercantile Gazette the number of bills of sale regis. passing and applying to remote corners of the Empire codes which most of tered in England and Wales for the week ending February 18, was 1,028. The local Governments, presumably the best judges of the needs of their The number in the corresponding week of last year was 992, showing an respective provinces, have declared to be unnecessary or unsuitable, is one Increase of 36, being a nett decrease in 1882, to date, of 74,
which can hardly be too strongly condemned.
debtor. The creditors of a debtor in February, 1877, resolved on a liquidation CASES OF THE WEEK.
of his affairs by arrangement. At the time of the âling of the petition the debtor was entitled to a sum of £750 contingently on his surviving his father,
and he had no other assets. In March, 1881, the trustee called a meeting of APPEAL-TIME-REFUSAL TO ADMIT CLAIM BY CREDITOR IN ADMINISTRA. the creditors to consider an offer which had been made for the purchase of TION ACTION.—In a case of Fordham v. Clagett an application was made to the debtor's contingent revereionary interest, and the creditors passed & the Court of Appeal, on the 18th inst, for an extension of the time for resolution “that the reversion be still beld under the consideration of the appealing under the following circumstances. The action was for the trustee, and that he be, and is hereby, authorized to exercise his discretion as administration of a testator's estate, and judgment for administration had to accepting a private offer, or selling by public auction, at such time as he been giveu. A creditor for a large som had sarried in a claim under the may deem to be needful." A creditor who dissented from this resolution, and judgment, and his claim had been refused by the judge after a fall argument alleged that it had not been passed bona fide, applied to the court for an order in court. The applicant's counsel stated that, when a creditor's claim to that the trustee should, within fourteen days, realize the estate of the debtor, prove in an administration action is refused, it is not the practice to draw up and in particular should sell the reversionary interest by public auction or acy formal order, but the result of the refusal is afterwards embodied in private contract.
The trustee deposed that the
The trustee deposed that the debtor's father was in his the certificate of the chief clerk. Before the Judicatore Act it was the seventy-ninth year, and said that, in his opinion, and that of he majority of the practice, if & oreditor wished to appeal from such a refusal, for him to wait creditors, the reversionary interest should not be immediately sold. The till after the certificate had been made, or else to get a separate certificate registrar refused to intersere with the trustee's discretion, and the Court of made as to his own claim, and then to apply pro forma to the judge to vary
Appeal (JESSEL, M.R., and BRETT and HOLKER, L.JJ.) affirmed the decision. the certificate, and to appeal from his refusal. As, however, the refugal by
JESSEL, M,R., said that section 20 of the Bankruptcy Aot, 1869, gave a discrethe judge to admit the claim was an interlocutory order, and such an order
tiou to the trustee as to the management and distribution of the bankrupt's must now be appealed from within twenty-one days, the applicant feared that estate, subject to the resolution of tbe creditors. Of course, it was his duty to sell if he waited for a certifioate, he would be too late to appeal, inasmuch as
| the bankrupt's property ; but, subject to a resolution of the creditors, he was the twenty-one days from the judge's refusal to admit the claim wonla | entitled to exercise his own discretion as to the time and mode of sale. In expire on the 21st ipat. Therefore an extension of time was asked for.
the present case the trustee, in the exercise of bis discretion, did not wish to The court (JESSEL, M.R., and Brett and HOLKER, L.JJ.) held that the
sell the contingent reversionary interest now, and a creditor was entitled to refusal might be appealed from withont any formal order being made, and,
apply to the court only on the ground that the trustee had not exercised his therefore, no extension of time was needed, for the applicant could give
discretion bona fide. The court would not interfere unless the trustee was notice of appeal at once.-SOLICITORS, Horné f Birkett.
doing that which was so utterly unreasonable and absurd that no reasonable man would thus act. It was sufficient to state the proposition to show that it
was not so in the present case. As the bona fides of the creditors' resolution PRACTICE APPLICATION FOR STAY OF EXECUTION PENDING APPEAL was disputed it could not be referred to, though the court could not help APPLICATION TO MASTER-ORD. 58, RR. 16, 17-ORD. 54, R. 2.-In a case of seeing that there was such a resolution.-SOLICITORS, W.J. Collens ; Plunkett Heiron v. The Metropolitan Bank, an application was made to the Court of & Leader. Appeal on the 15th inst., for a stay of execution under a judgment pending an appeal. The action was in the Queen's Bench Division, and the application had been made in the first instance to a master in chambers, and had been
CONTEMPT-BREACH OF INJUNCTION-REFUSAL TO COMMIT--Right or refused by him, but no application had been made to a judge or to a divisional
| APPEAL.-In a case of Jarmain v. Chatterton, before the Court of Appeal on court. It was contended that, notwithstanding that rule 17 of order 58 says
| the 17th inst., the appeal was from the retusal of Bacon, V.C., to make an that such an application “shall be made in the first instance to the court or
order of committal for the breach of an injunction, and it was contended judge below," it was proper to come at once from the master to the Court of
that, where a judge of first instance bas refused to commit for contempt, the Appeal, because rule 2 of order 54 provides that in the Queen's Bench Division
Court of Appeal would not interfere with the exercise of his discretion, a master “ may transact all such business and exercise such authority and reliance being placed on the case of Ashworth v, Outram (25 W. R. 896, jurisdiction in respect of the same as under the Act may be transaeted or
L. R. 5 Ch. D. 943). The Court of Appeal (JESSEL, M.R., and BRETT and execated by the judge at chambers," with certain exceptions which do not
HOLKER, L.JJ.) held that no such rule existed. JESSEL, M.R., said that include an application for a stay of execution. The court (JESSEL, M.R., and
Ashworth v. Outram was not intended to alter the practice which was in force BRETT and HOLKER, L.JJ.), bowever, held that the applicant ought, before
before the Judicature Acts. It was intended only as a decision that under coming to the Court of Appeal, to bave renewed the application before the
the circumstances of the particular case an appeal could pot be entertained. court below or a judge. They said that rule 2 of order 54 did not put the
SOLICITORS, Scott, Jarmain, &: Trass; H. W. Chatterton. master in the position of the court or & judge for the purpose of rule 17 of order 58. The application was, therefore, refused.
RAILWAY COMPANY-COMPULSORY PURCHASE-NOTICE TO TREAT-MINES
AND MINERALS-RAILWAYS CLAUSES CONSOLIDATION Act, 1845, s. 77.-In PROOF IN BANKRUPTCY-CLAIM ARISING OUT OF A FELONY-COMPOUNDING a case of Errington v. The Metropolitan District Railway Company, before A FELONY-STIFLING A PROSECUTION.-In a case of Ex parte Leslie, before the Court of Appeal on the 17th iost., a question arose upon the construction the Court of Appeal on the 16th inst, the question arose whether a proof of section 77 of the Railways Clauses Act, 1845, which provides that “the tendered in a bankruptcy was liable to objection on the ground that the company shall not be entitled to any mines of coal, ironstone, slate, or other claim arose out of a felony, or that the claimant bad entered into an minerals under any land purchased by them, except only such parts thereof agreement not to prosecute the bankrupt for a felony. The bankrupt had as shall be necessary to be dug or carried away or used in the construction of been allowed by his bankers to overdraw his current account with them, the works, unless the same shall have been expressly purchased; and all suoh on bis depositing with them as security some bills of exchange, drawa by | mines, excepting as aforesaid, shall be deemed to be excepted out of bim upon, and, apparently, accepted by, by another firm. Soon after the veyance of such lands, unless they shall have been expressly named therein deposit bad been made, and the bankrupt had overdrawn his account to a and conveyed thereby." The company had given the plaintiff a notice to considerable extent, the bankers discovered that the 'acceptances of the treat for some land which they required for the purposes of their underdeposited bills were forgeries. The bankers thereupon communicated taking. The value of this land was afterwards assessed by an arbitrator, and with the bankrupt, and ultimately he handed to them some joint and a conveyance of the land was executed by the plaintiff to the company, no several promissory notes of himself and his father for sums corresponding express mention being made of the mines and minerals under tbe land. The to the amounts of the bills, or thereabouts, and the bankers returned the company afterwards served the plaintiff with a second notice to treat for the bills to the bankrupt. The adjudication of bankruptcy took place some mines and minerals, and the action was brought to restrain the company from months afterwards. In the bankruptcy the bankers claimed to prove for proceeding under this notice. Hall, V.C., granted a perpetual injunction, the balance due to them on the bankrupt's current account, stating in being of opinion that the company had no power to acquire the mines and their affidavit of proof that they held the promissory notes as security, but minerals compulsorily, but that they could only do so by agreement. This they did not claim to prove on the potes. The trustee rejected the proof, decision was reversed by the Court of Appeal (JÉSSEL, M. R., and Brett and on the ground that the claim arose out of a felony, and that the bankers, HOLKER, L.JJ.), who held that under the Lands Clauses Act the company when they received the promissory notes and gave up the bills, had entered would have power to take the mines and minerals compulsorily, and that this into an agreement not to prosecute the bankrupt for felony. He had since power was not cut down by section 77 of the Railways Clauses Act, which the bankruptcy been prosecuted and convicted on a charge of forging the was intended for the benefit of railway companies, to save them acceptances to some other bills of exchange. The court (JESSEL, M.R., and necessity of purchasing mines which they did not require. There was nothing BRETT and HOLKER, L.JJ.) beld that the proof ought to be admitted. to prevent a railway company from serving an owner with several notices to JESS EL, M.R., said it arose out of an ordinary contract for a loan, and, even treat, and it made no difference whether the lands, in respect of which the if the alleged corrupt agreement had been entered into, it could not notices were given, were severed by a horizontal or by a vertical line. In destroy the antecedent contract to repay the loan. A line of authorities this case there was the evidence of the company's engineer, on which the court had been cited which seemed to show that, when a claim to prove in a bank would rely, that there were no minerals except gravel and clay, whicb, if ruptcy arose out of a felony, the proof could not be admitted until either ever worked, could only be worked by disturbing the surface, and so letting the claimant had prosecuted the felon, or he had been prosecuted by some one down the works. The company chose to guard against such a possibility, and else, or a prosecution had become impossible. Whether that was 80 or not their view was quite reasonable, and proper.-SOLICITORS, Baxters & Co. it was unnecessary to consider, for those authorities had no application to A. F. & R, W. Tweedie. the present case. ---SOLICITORS, S. Chapman ; Morgan, Son, & Gilks.
WINDING UP-LIFE ASSURANCE COMPANY-REDUCTION OF CONTRACTSREALIZATION OF BANKRUPT's ESTATE - CONTINGENT REVERSION - SCHEME-DATE AT WHICH TO TAKE EFFECT-LIFE ASSURANCE COMPANIES DISCRETION OF TRUSTEE - BANKRUPTCY Act, 1869, 8. 20.-In Act, 1870 (33 & 34 VICT. C. 61), s. 22-COMPANIES Act, 1862, s. 84.-In a * case of Eo parte Lloyd, before the Court of Appeal on the case of In re The Great Britain Mutual Life Assurance Society, before the 16th inst., a question arose as to the discretion of a trustee in bankruptcy | Court of Appeal on the 8th inst., a question arose upon the construction of or liquidation as to the realization of the estate of the bankrupt or the provisions contained in the Life Assurance Companies Act of 1870, for