Page images



contract to share losses is to be inferred, they must contribute in proportion to their share in the profits ; but the Court of Appeal

REVIEWS. held that it was the shareholders who, under the peculiar constitution of the society, substantially took the profits, and that it

COMPENSATION. was practically impossible to find the proportion of the interest A TREATISE ON THE PRINCIPLES of the Law of COMPENSATION IN REFERENCE of the policy-holders in the profits in relation to that of the

LANDS CLAUSES CONSOLIDATION Acts. By O. A. CRIPPS, shareholders. Either, therefore, the losses must have been divided

Barrister-at-Law. H. Sweet. between the two classes of members per capita, or the share

This is a remarkably well-written treatise. “ Clearness of explanation holders be held primarily liable for them; and the former course

has been a principal object,” we read in the preface, "and this the seemed so unreasonable that the latter was adopted by the author has endeavoured to attain by the adoption of a logical method of court.

arrangement." This object has been attained. The arrangement and A further question afterwards arose in Brown's case (L. R. 18 modes of reference leave nothing to be desired, except that perhaps we Ch. D. 639)-namely, whether a policy-holder, who had duly might have had references from the various sections of the principal Act assigned his policy, notice of the assignment having been given to the pages where they are commented on in the text, and that where to the society, but no other person having been registered as a

special Acts are referred to (which we are glad to find occasionally to be

the case) the chapter is printed in Arabic instead of Roman numerals. As member in his stead, could still be placed on the list of con

a useful novelty in works upon the subject, we observe with interest, in tributories. In this case Mr. Justice Fry, from a careful review chapter 12, a short summary of the rules determining the amount of com: of the articles of association, drew the conclusion that the whole pensation, but miss from it any allusion to the extra percentage stated scheme of them was that a holder of a policy was to be a member by the House of Lords Committee in 1845 to be usually given by surof the company, but that when he ceased to be a holder he ceased veyors on the ground of the sale being compulsory, in addition to the to be a member, and was consequently not liable to be placed on

marketable value of the land. With regard to the way in which the the list of contributories ; and the extreme hardship to original reference to the continual differences between two late Lords Justices on

cases are treated, we can speak very highly. We miss, however, some policy-holders, having assigned their policies, which would have the meaning of the 92nd section of the Lands Clauses Act ; and the very resulted from a contrary decision was happily averted.

difficult question (see Hooper v. Bourne, L. R. 5 App. Cas. 1) whether lands It is to be observed, however, that the question what was the acquired by a company otherwise than under their compulsory powers extent of the liability of the policy-holders was not really con- can ever be treated as superfluous appears to us to be inadequately cluded by any of the foregoing cases. In Winstone's case the sole treated. Moreover, although the preface bears date June, 1881, not a point decided was that the policy-holders must be placed on the few important cases reported in 1880-2.9., In re Metropolitan District list of contributories, but the questions to what extent they were Railway Company and Cosh (28 W. R. 685, L. R. 13 Ch. D. 607); liable, and what was the extent of the liability of the two (28 W. R. 565, L. R. 14 Ch. D. 323); and Askew v. Woodhead (28

In re Metropolitan Street Improvement Act, Ex parte Chamberlain classes of contributories as between themselves, were both expressly W. R. 874, L. 'R. 14 Ch. D. 27)—are entirely omitted from the book ; left open. In the Albion Society's case the latter question only nor are there any

" addenda." was decided ; and it was determined that until the shareholders were unable to pay, the policy-holders must not be resorted to at


The CONVEYANCING AND LAW OF PROPERTY Act, 1881, 44 & 45 Vict. c. 41 From an adjourned summons which was opened before Mr.

(BEING AN ACT TO SIMPLIFY CONVEYANCING), WITH INTRODUCTION, SUMJustice Fry on the 16th ult., but which stood over for further MARY, AND PRACTICAL NOTES AND CONVEYANCING PRECEDENTS, &c. THIRD evidence, 'it appeared that the shareholders have now been EDITION. By J. S. RUBINSTEIN, Solicitor. Waterlow Bros. & Laytop. exhausted, and, as might have been expected, the court is now

A critic must be expected to view the third edition of a book with more called upon to decide the extent of the liability of the policy- rigorous eyes than the first

. In his third edition Mr. Rubinstein has holders, and not only this, but how they, who are themselves corrected some slips and errors, and has improved and enlarged his creditors for the amount of the value of their policies, are to rank commentary. There still remains room for further emendation. The in relation to the outside creditors of the company.

note formerly at p. 22, now at p. 32, has with great propriety been made It is impossible not to commiserate the case of the policy- to precede section 13, instead of following it. But the explanation of holders, and the lesson to be deduced from their fate is obvious

section 13 given at p. 25 is open to exception. That section, we conceive,

does not forbid an intended lessee” to “call for his lessor's title," it namely, the importance before signing a proposal for a policy of forbids him to call for the title of his lessor's lessor. But we do not care thoroughly mastering the nature of it, and the liabilities in- to dwell upon these matters, because in our eyes the chief merit of the volved in it. Had this been done, probably there would have little book is its excellent index and very useful appendix of statutes. been fewer policy-holders in the Albion Assurance Society. The book's utility would, we think, be greatly increased by increasing the

scope of this appendix; and we doubt whether any harm would be done by omitting the conveyancing precedents. Mr. Rubinstein has added a good

many more of these ; and in some cases he has improved the old ones. Thus, We are informed that Mr. Robert Murray, of Collatten, has been ap- No. 33 now shows upon the face of it (which in its former shape it did pointed Valuer to the Irish Land Commission.

not) that the person purporting to convert a long term into a fee The Canada Law Journal announces that the Attorney-General bas in simple is entitled in right of the term. It might be still further improved troduced an Act for eimplifying the practice of conveyancing and amend. by using in the second recital the exact language of the Act, instead of jog the law of property. It seems to be a reprint, to a great extent, of

some other language which probably comes to the same thing, for it is a Lord Cairns' Act,

fixed rule with conveyancers not to use the latter when they can get the On the 4th inst, the Queen's Bench Division (Field and Bowen, JJ.) heard former. Moreover, the operative part would certainly be no worse if it county court appeals, and in the first case Mr. Justice Field, it being stated expressly purported to be by virtue of the Act; and in the phrase “ the that the judge's notes, taken merely for bis own information, had been by term created by the said lease shall be, and the same is hereby enlarged mistake destroyed by the registrar, observed that there were three recent cases from the same court in which the judge's notes were either wanting or

into a fee simple,” the words in italics had better be left out. The Act imperfect, and he really wisbed the judge would take a better note in future.

contains nothing to authorize the use of the present tense in addition to In another case, in which the county court judge had set out the whole of the future. By venturing into this difficult region, where we think some the evidence of the witnesses in exienso, which filled eighteen brief sheets, greater people have been caught stumbling, Mr. Rubinstein has perhaps instead of stating succinctly what were the facts proved in evidence (as is shown more courage than diseretion. And precedents stand little chance usual in statiog a case for the court) the learned judge observed that this was of being adopted in practice, unless they are recommended by great pro. very inconvenient, and very oppressive to the parties ; it put the court to fessional weight in their author's name. the trouble of reading through all these sheets of evidence to find out what were the facts proved, and it put the parties to the necessity of having all

CONVEYANCING, these sheets copied and re-copied, thus throwing upon them a great un. necessary expense for law stationery. It was a small matter which was at COMMON PRECEDENTS IN CONVEYANCING, TOGETHER WITH THE CONVEYANCING stake, and the parties were put to all this needless expense. In another AND LAW OF PROPERTY Acr, 1881, AND THE SOLICITORS' REMUNERATION case the learned judge said the case did not sbow wbat the point was which

Act, 1881. By Hugh M. HUMPHRY, Barrister-at-Law. Stevens & Song, the county court judge had decided, nor what he bad decided, nor on what ground or reason he bad decided it, and the case must go back to him to be The author of this work is, to some extent, a victim of the astonishing Te-stated. It was essential, said the learned judge, to the exercise of the swiftness with which the Conveyancing Bill was hurried through its final right of appeal, that the judge should take notes of the evidence, and state stages at the close of the last session. From his preface we gather that the facts proved and the points decided clearly and distinctly, so as to enable he, like many other people, did not expect the Bill to pass. We can that court to understand them.

imagine few surprises more disagreeable to an author who has just



printed a book of precedents; not, indeed, that we credit the Act with most oppressive use made of interrogatories to ascertain the profits made by a
the power to effect anything like a transformation scene in conveyancing, business after a sale of it. The old practice was most cruel, and rule 19 of
but because the public always expect to find a book furnished with the order 31 gave the judge a power of putting å stop to it, notwithstanding the
“latest improvements.” Mr. Humphry has attempted to supply the old decisions. That rule appeared to apply exactly to the present case. It
want by printing the Act as an appendis; and he suggests that, "for to compel this discovery to be made until after the plaintiff had established
the present, at least, it may not be found inconvenient to have in one
book the practice of conveyancing which is to be simplified and im- | her right.-SOLICITORS, H. Windybank ; Robinson, Preston, & Stow.
proved, followed by the means of simplifying and improving to be used
at discretion" (p. v.). It is possible that the book is none the worse for COMPANY-WINDING UP-CLAIM— POWER OF COURT TO ENLARGE TIME FOR
being left alone; and we have certainly met with cases in which great haste PUTTING IN AFFIDAVITS TILL AFTER CROSS-EXAMINATION OF CLAIMANT-
and boldness in applying the Act to conveyancing has not been attended DISCRETION OF JUDGE.-Io a case of In re The Marseilles Extension Railway
with happy results. But Mr. Humphry seems to anticipate a wide and Land Company, before the Court of Appeal on the 2nd inst., an
application for the Act; and if this expectation should be realized, we application was made by the liquidator of the company to have the time
fear that the public will require to have the Act applied for them. Very enlarged for his filing affidavits in opposition to a claim to prove in the
few will have the daring to trust themselves in this matter to their own liquidation until after he should have cross-examined the claimant upon
sole guidance. It has become a difficult thing to show much originality in bis affidavit in support of his claim. The reason alleged for the application
drafting such simple forms as are here given. We are by no means clear former liquidator, that he knew nothing

of the facts relating to the olaim, that

was that the liquidator bad been only recently appointed in succession to a that Mr. Humphry's divergences from the beaten track always commend themselves to our judgment. For example, it is usual in a marriage all the doouments and evidence in relation to it were in the possession of the settlement of stocks and similar securities to preface the declaration of claimant, and that it was impossible for him to set up his defence until he the trusts by a general investment clause, and to make the trusts refer to the application, and his decision was affirmed by the Court of Appeal

bad an opportunity of cross-examining the claimant. Fry, J., had refused the income and corpus of the investments contemplated by this clause. (JESSEL, M.R., and LINDLEY, L.J.). JESSEL, M. R., said that it was not the But Mr. Humphry seems to prefer to make the trusts speak directly of practice to delay the filing of the respondent's affidavits in such a case until the income and corpus of the settled property itself, providing long after after the claimant bad been cross-examined. His lordship did not mean to wards and in a remote part of the draft, that it may be invested in other say that the court had not jurisdiction to enlarge the time for filing the ways. We cannot see how anything is gained by this method, which has affidavits, but when the judge of first instauce had exercised his discretion, a particularly awkward look when applied to a policy of assurance, it was not the practice of the Court of Appeal to interfere, unless it was abruptly introducing the income of the policy-moneys (p. 100), which shown that there had been a gross miscarriage. Nothing of the kind had can have no incopie until investment.

been shown in the present case.

It must be shown that it was necessary for the purposes of justice to depart from the ordinary practice. The liquidator must put in the best defence he could, and if he found that he could not make a satisfactory defence he could, after the cross-examination

of the claimant, apply to the judge before the hearing of the olaim for leave CASES OF THE WEEK.

to put in further evidence, and in a proper case this leave would be given

almost as a matter of course. LINDLEY, L.J., said that, although the DISCOVERY — INTERROGATORIES - ACCOUNTS OF PROFITS DENIAL or ordinary course was not to postpone the putting in of the affidavits until PLAINTIFF's Title-ORD. 31, R. 19.-In a case of Bemery v. Worssam, before after discovery had been obtained from the other side, the judge had power the Court of Appeal on the 3rd inst., a question arose as to discovery. The to do so. But Fry, J., in the exercise of bis jadioial discretion, had thought action was brought by one of the next of kin of an intestate, wbo died in 1869, fit pot to do so in the present case, and no reason had been shown for the to set aside a sale wbich she had, in 1871, made of her share in a business interference of the Court of Appeal.-SOLICITORS, Harrison & Co.; G. S. which the intestate had carried on to some others of the next of kin. The & H, Brandon. plaintiff had delivered interrogatories for the examination of the defendants, and had (inter aliu) required them to state what the proâts of the business had been since the sale. And the question was whether the defendants were REMOTENESS-SALE OF LAND with UNLIMITED COVENANT BY PURCHASER bonnd to answer this. Fry, J., had held that they were not, and the Court to RE-CONVEY ON REQUEST OF VENDOR-RAILWAY COMPANY_SALE OF of Appeal (JESSEL, M. R., and LINDLEY, L.J.) affirmed the decision. It was SUPERFLUOUS LANDS-LANDS Clauses CONSOLIDATION Act, 1845, s. 127 — urged that the discovery might assist the plaintiff in showing that the defend. Costs—COPIES OP SHORTHAND WRITER's Notes.—On the 6th inst. the ants had purobased at a gross undervalue, and that, therefore, it might have Court of Appeal (JESSEL, M.R., Sir JAMES HANNEN, and LINDLEY, L.J.) a material bearing on her success at the trial, her case being that she had reversed the decision of Kay, J., in the case of The London and South. exet uted the assigoment to the defendants without understanding the nature Western Railway Company v. Gomm (30 W. R. 321). Two important of it. JESSEL, M.R., said that the question must be decided, not with questions arose in the case- -(1) whether a conveyance of land in fee, with an reference to the old practice of the Court of Chancery, which in this respect unlimited covenant by the grantee for the re-couveyance of the land by him greatly needed alteration, but with reference to rule 19 of order 31. Primă or his heirs to the vendor or his heirs at his or their option, is void as being facie the defendants would bave to show that the sale in question was a fair obnoxious to the rule against perpetuities; (2) whether such a conveyance by one. They alleged that it was, and they entirely denied the plaintiff's title a railway company of their "superfluous lands” is valid within section 127 to relief. The plaintiff asked them state what profits they had received of the Lands Clauses Act. Section 127 of the Act provides that, "withia from the business since the sale by her. They stated what ihe profits had the prescribed period, or, if no period be prescribed, within ten years after been up to the time of the sale, but they declined to state what the profits had the expiration of the time limited by the special Act for the completion of the been since. Fry, J., was of opinion that the discovery would not aid the works, the promoters of the undertaking shall absolutely sell and dispose of plaintiff in obtaining a decree, and that it would not be fair to call on the all such superfluous lands” (i.e., lands acquired by the promoters of the defendants to make the discovery, and the Master of the Rolls thought that undertaking, and not required for the purposes thereof), and apply the this decision was right. In the first place, it was not accurate to say that the purchase-money arising from such sales to the purposes of the special Act; plaintiff, if she succeeded, would be entitled to the profits made by the defend and, in default thereof, all such superfluous lands remaining unsold at the ex. ants from her share of the business ; she would be entitled only to her pro- piration of such period shall thereupon vest in and become the property of portion. The defendants would be entitled to an allowance in respect of any the owners of the lands adjoining thereto, in proportion to the extent of their fresh capital which they had brought io. And his lordship adbered to wbat lands respectively adjoining the same.' In the present case the plaintiff he said in Parker v. Wells (L. R. 18 Cb. D. 477), that the mere fact that the company in August, 1865, conveyed a piece of land, which adjoined one of discovery sought might enable a plaintiff to obtain an immediate decree would their stations, for £100, to one Powell, who was the owner of adjoining land, not be a sufficient reason for requiring the defendant to set out long and in fee. The piece of land was described in the deed as “land no longer intricate accounts, or the result of long and intricate accounts. It was by no required for the purposes of the railway,” and there was a recital that the means an easy thing to say what the profits of a business were. It required company had contracted to sell it to Powell, “subject to the conditions herein a vast number of inquiries and intricate calculations, and of course, if they contained.” The deed contained a covenant by Powell, for himself, bis heirs, did answer, the defendants would not answer positively, but would take care executors, administrators, and assigns, with the company, their successors and to guard themselves against errors. Then of what use would the discovery be assigns, that he, his heirs and assigns, owner and owners for the time being to the plaintiff? The business might have been very unprofitable before the of the land thereby conveyed, and all other persons who should or might be sale, and might have become profitable since, by reason of fresh capital having interested therein, should and would at any time thereafter (wbenever the been brought in, or of the personal attention of the defendants. The disa said land might be required for the railway or works of the company), whencovery would not be valuable evidence of the profits at the time of the sale. ever thereunto requested by the company, their successors or assigos, by a It would not belp the plaintiff in obtaining a decree, and it would be oppressive six calendar months' previous notice in writing, to be left at the last-known on the defendants. As to the case of Saunders v. Jones (26 W. R. 226, L. R. place of abode of Powell, his heirs or assigns, owner or owners for the time 7 Ch. D. 435), the fifth interrogatory which was allowed there did not ask for being of the said land, and upon receiving from the company, their successors, an account of profits, but simply for an account of the aggregate amount or assigne, the sum of £100, without interest, execute to the company, their received by the defendant in respect of the sales which had been made by successors and assigns, an effectual re-conveyance of the land, free from him, which of course the books would show. It was that upon which James, incumbrances. In 1879 the land was purchased by and conveyed to the L.J., relied, and he also said that the matter was within the discretion of the defendant, who had notice of the provisions of the deed of August, 1865. On judge of first instance, from whom he thought it would be impossible to the 12th of March, 1880, the company served notice on the defendant that differ. In the present case the judge had decided the opposite way. The they required the land for their railway and works, and requesting him to Master of the Rolls bad no doubt about the matter, but if he had, he should convey it to them at the expiration of six months. And they offered to pay say that he would not differ from the judge of the court below.' LINDLEY, him £100 and the costs of the conveyance on its execution. The defendant L.J., said that under the old practice of the Court of Chancery, he had seen a refused to comply with the demand, alleging that the conveyance to Powell


wes invalid on one or both of the above grounds. The action was brought by losing it by its vesting in the adjoining owner. No doubt, before the expira. the company to compel the defendant to convey the land to them. Kay, J., tion of the statutory period the company might determine that the land was held that the defendant must specifically perforin the covenant. He beld that superfluous and might then sell it, and no doubt, also, at the expiration of the the transaction of 1865 was not a conditional sale by the company to Powell, ten years, if the responsible advisers of the company determined that the land but a sale out and out to bim, with a personal contract by him to re-convey, was wanted for the purposes of the undertaking, the company could keep it. when called on, at a certain price, and that this was not invalid under section But, when once the land had been determined to be superfluous it must be 127. His lordsbip expressed his disapprobation of the decisions in Gilbertson immediately sold, or it would rest in the adjoining owner. In either caso, no v. Richards (5 H. & N. 453) and The Birmingham Canal Company v. interest in the land could be retained by the company. If bis lordship was right Cartwright (27 W. R. 597, L. Á. 11 Ch. D. 421). In the latter case Fry, J., in wbat he had already said, the company did in the present case retain an equitbeld that an option of re-purchase of land, unlimited in point of time, was able interest in the land, and the Act required that they should make an absonot a violation of the rule against perpetuities, because the right might at lute sale. Consequently the land either revested absolutely in Powell, or he, apy time be released by the person entitled to it to the owner for the time or his successor, had obtained a good title to it by the Statute of Limitations. being of the land. But Kay, J., beld that in the present case the covenant Sir JAMES HANNEN thought that the company were estopped from denying by Powell did not give the company any estate or interest in the land, but that the land was not "superfluous laud” at the time of the sale to Powell. It that it was a mere personal covenant, binding only on assiguees of Powell was plain that they could only sell it subject to the terms imposed by section who took with notice of it, and that, consequently, the rule

against perpet- 127, and that required that they should absolutely sell.” Particular stress Dities did not apply. It was urged in the Court of Appeal that the principle was laid on the word "absolutely.” The object was to prevent the company, of the cases, such as Tulk v. Moxhay (2 Phil. 774), in which it was held that after it was found that the laod whioh they had acquired was not wanted for an unlimited restrictive covenant as to the use of land is binding in the purposes of their railway, from still retaining a bold on the land. His lordeqolty on an assigo who takes with notice of it applied. Jessel, M.R., said that chip did not think that a contract by a company to settle the price at which the covenant by Powell was unlimited in point of time, and it did not appear to they should acquire land at a future time would be invalid, if some time for his lordship possible to insert in it any limit of time. To insert the their so doing was limited. Kemp v. The South-Eastern Railway Company words “ within a reasonable time" would be contrary to the intention of the was an authority for that. But he thought that it would be a startling thing parties. The covenant was evidently intended to be unlimited in point of to say that a power to require a conveyance of land to be made at a future time. The company did not know whether they would ever want the land for time did not create an interest in the land. And, if it did, and it was untheir railway, and it was of the very essence of the covenant that it should be limited in time, it was quite clear that it violated the rule against perpetuities. polimited in point of time. The limit which was implied by the court in If the covenant did not create any estate or interest in the land, it clearly did Kemp v. The South-Eastern Railway Company (20 W. R. 306, L. R. 7 Ch. 364) not run with the land at law, and Haywood v. The Brunswick Benefit Building - viz., the period limited for the exercise of the company's compalsory powers Society bad put a wholesome restriction on the application of the doctrine of to take land-could not be implied here, because the compulsory powers had Tulk v. Moxhay, by confining it to restrictive covenants. LINDLEY, L.J., expired before the date of the conveyance. If this was so, and if the covenant said that the plaintiffs were bound to show on what legal principle the defendfeil within the rule against remoteness, the legal period was exceeded. Was ant was bound by a covenant into which he did not enter. It was not prethe covenant then within the rule ? That depended upon whether it created tended that the covenant bound bim at law; but it was said that he was bound an interest in the land. If it was a mere personal covenant, of course it was in equity because he bought the land with notice of the covenant. That not within the rule. But even then it was impossible to see how the present assumed that every purchaser of land with notice of a covenant which had defendant could be bound by it, for he did not enter into the covenant. The been entered into by his predecessor in title was bound by it. That, however, plaintiffs, therefore, must admit that it bound the land somehow, and, was precisely the proposition which was dealt with by Haywood v. The Bruns. if so, it created an equitable interest in the land. A contract to sell land wick Benefit Building Society. If the principle of Tulk v. Moxhay did not clearly gave an equitable interest in the land ; an option to purchase was in apply, the defendant was not bound by the covenant, and that was enough to substance the same thing. The land was thereby taken away from the owner dispose of this case. His lordship, however, agreed in what had been said without his consent, on the giving of the notice and the payment of the about the rule against perpetuities and the effect of section 127. specified price, and there was no distinction between one kind of equitable The appeal was allowed with costs, including the costs of copies of a shortinterest and another, except in the case of a charity. The interest must take hand writer's notes of the judgment of Kay, J. But JESSEL, M.R., said that effect within the prescribed period. The question was, not how the interest those copies bad not been used by the court, for they had used a report of the was created, but what was the nature of the interest which was attempted to judgment of Kay, J., in the Law Journal reports. That report, however, had be created. His lordship thought he could not do better than read the been published only just before the hearing of the appeal, and, no doubt, the copies definition of a perpetuity given in Sanders on Uses, quoted in Lewis on of the shorthand writer's notes had been made before the publication. If the Perpetuities, p. 164:"perpetuity may be defined to be a future limitation, printed report had been published some time before the hearing of the appeal, restraining the owner of the estate from aliening the fee simple of the property the costs of the written copies of the judgment would not have been allowed. discharged of such future use or estate, before the event is determined, or the SOLICITORS, Wright & Pilley ; M. H. Hall. period is arrived, when such future use or estate is to arise. If that event or period be within the bounds prescribed by law, it is not a perpetuity." And Mr. Lewis himself added :

-In other words, a perpetuity is a future limita- COMPANY-WINDING-UP-APPOINTMENT OF LIQUIDATOR AT HEARING OF tion, whether execatory or by way of remainder, and of either real or personal Petition-WINDING-UP PETITION PROCEEDED WITH AFTER NOTICE OF PRIOR property, wbich is not to vest antil after the expiration of, or will not PETITION-Costs-GENERAL ORDERS OF NOVEMBER, 1862, R. 8.-In a case of necessarily vest withio, the period fixed and prescribed by law for the creation In re The General Pinancial Bank, before the Court of Appeal on the 3rd of future estates and interest, and which is not destruotible by the persons for inst., the question arose whether it is in accordance with the practice of the the time being entitled to the property subject to the future limitation, except court under the Companies Act, 1862, to make an appointment of an official with the concurrence of the individual interested under that limitation." Was liquidator on the hearing of a petition to wind up a company, and there was there any substantial distinction between a contract for purobase, an option to also a question as to the costs of a creditor who, having presented a winding-up purchase, and a limitation upon a condition ? Could it make any substantial petition without notice of the presentation of any other petition, had gone on difference whether there was a limitation to A. in fee, provided that, whenever with his petition after he had received notice of the previous présentation of B. or his beirs should send A. or his heirs £1,000, the estate should vest in B. or another petition. On the 4th of February B., a creditor of the company, bis heirs, or whether there was a contract that, in that event, A. or his heirs presented a petition for its winding up. On February 1 a winding-up petition should convey the estate to B. or his heirs ? His lordship could not see that had been presented by A., another creditor. B. did not know of this petition there would be any difference in a court of equity. And what difference when he presented his own, but he did know of it before he advertised his could it make that the contract, instead of being that the land should be con- petition. 'He, however, believed that A.'s petition was not a bona fide one, and veyed on payment of the £1,000, was only that B. should be entitled to a con. determined to go on with his own, and it turned out afterwards that, before veyance in that event ?

His lordship was of opinion that Mr, Justice Kay A. had presented bis petition, the company bad agreed to indemuify him was quite right in his view of the authorities, including the decision of Fry, J., against the costs of it. Before the petitions came on to be heard an order io The Birmingham Canal_Company v. Cartwright, which must now bé was made appointing the cbairman and the secretary of the company interim treated as overruled. But Kay, J., was wrong in holding that the covenant receivers and managers of the company until the hearing of the petitions. On did not create an interest in the land. He forgot that, if it did not, he could the 11th of February A.'s petition came on for hearing before Bacon, V.C. not make a decree against the defendant Gomm. If the covenant did not, so His lordship refused to post pone the bearing until the other petition could be to say, run with the land in equity, it could not be enforced against Gomm. heard, and he made an order to wind up the company, and appointed an As to the cases opon restrictive covenants, the doctrine of those cases had been official liquidator. On the 24th of February B.'s petition came on to be lately fully considered by the Court of Appeal in Haywood v. The Brunswick heard, together with a motion by him that the carriage of the winding-up Benefit Building Society (30 W. R. 299), and the court there decided that order might be given to him ; ibat the usual reference to chambers might be they would not extend the doctrine of Tulk v. Moxhay to affirmative directed for the appointment of an official liquidator ; and that B.'s costs of covenants, but that it must be confined to restrictive covenants. His lordship his petition might be paid out of the company's assets. Bacon, V.C., refused thought that was a right decision, but, at any rate, this court was bound by it. the motion, and declined to make any order on the petition. JESSEL, M.R., Rightly considered, Tulk v. Moxhay was not an authority for saying that any said that he had understood for years past that the practice had been equitable interest in land might take effect at any time without regard to its settled, not to make an order appointing an official liquidator on the bearing remoteness. Tulk v. Mozhay was an extension in eqnity of Spencer's case to of a winding-up petition, but to refer it to chambers to make the appointment. another line of cases, or an extension of the doctrine of negative easements, The reason for this was obvious. If the order was made at the hearing of the such as the right to access of light. It established an exception on the common petition, every one who objected to the appointment of a particular person law right. The owner of the estate took it subject to the burden, though, if he would have to appear by counsel. This would lead to enormous expense, and, had no notice of the covenant, be took the estate free from the burden. But moreover, the judge would not be so well able to investigate the matter in that did not affect the nature of the burden. As to the question whether the court as he would in chambers. His lordship thought this was the settled con revance was not ultrd vires of the company under section 127, his lordsbip practice. It was so laid down in Mr. Buckley's bouk. At al events, tris thought that section meant that if, at the expiration of the statutory period lordship wished to lay it down by a decision of the Court of Appeal, which the land was superfluous, the company must sell it, under the penalty of their would be binding on all the courts of first instance, that such was to the




practice in future. In any case of urgent necessity the court could appoint a tageous form of tenure. Property could not be let at so good a rent in that
provisional liquidator at the hearing of the petition, though in most cases the way. But the scheme as it stood would not prevent the trustees from granting
appointment of a receiver would be sufficient. With regard to the cost of B.'s leases renewable on the payment of a fine wish the sanction of tbe Charity
petition, he was a bona fide creditor, and was, at any rate, entitled to his costs Commissioners. And the court gave the trustees no costs of the appeal. -
op to a certain time. In an ordinary case a petitioner would not be entitled SOLICITORS, Bell, Brodrick, f. Gray; J. M. Clabon.
to costs after he knew of the previous presentation of another winding-up
petition, though, of course, he might be entitled to them if the prior petition
was not a bona fide one. And that was how it had turned out in the present

A.'s petition was not a bonâ fide one, it was not a hostile petition.
The result was that B. was entitled to the costs of his own petition. The

(Sittings at Westminster, before Brett, Cotton, and HOLKER, L.JJ.) next question was what ought now to be done. His lordship thought the March 2.—The Law Society of the United Kingdom v. ShawThe Law proper course would be to discharge the Vice-Chancellor's order and make Society of the United Kingdom v. Waterlow Brothers & Layton. the usual winding-up order on both petitions. The company would bave These were actions for penalties againsi firms of law stationers carrying their costs of both petitions ont of the assets. The conduct of the winding

on business in London, it being alleged that the defendants aoted as proctors up order would be given to B. The official liquidator had done nothing wrong, and be would have his costs out of the assets. There would be the usual

in the Probate, Divorce, and Admiralty Division without being duly qualified order to take bis accounts and to discharge him. There would be a reference

within the Solicitors Act, 1860 (23 & 24 Viot. c. 127), s. 26. The admitted to chambers to appoint a liquidator, and the chairman and secretary of the London leave with the defendants original wills for the parpose of being

course of business in the first case was as follows:--Solicitors practising in company would be continued as receivers until the appointment of a liquidator. The costs of all parties of the appeal would be paid out of the company's engrossed on parchment in order to obtain probato, with instructions to the assets. LINDLEY, L.J., agreed that the order proposed by the Master of the defendants to perform the acts hereinafter mentioned as being performed Rolls was the right one to make. With regard to the practice as to the appoint- by them; also the document called the oath.” and the "atidavit.” In ment of an official liquidator, the 8th rule of the General Orders of November, accordance with such instructions the original will and the engrossed copy,

and "affidavit,” are sent by a olerk 1862, under the Companies Act, apparently gave the court power to make the together with the appointment at any time, and this was formerly acted on by appointing tho

messenger in the employ of the defendants to the principal official liquidator in court on the bearing of the winding-up petition. The registry office at Somerset House; the defendants provide the necessary result was that winding-up petitions' used to ask for the appointment of a

Ioland Revenue stamps to discharge the fees payable at the registry office, particular person as official liquidator. It was found

that this led to great office gives to the defendants' olerk or messenger a stamped receipt for the

the defendants being licensed dealers in stampe ; the olerk in the registry expense, and the practice grew op of directing a reference to chambers to make the appointment. Of course the appointment might still be made in above-mentioned documents, which are lost in the name of the solicitor, and court if all parties consented to the appointment of a particular person. The not in those of the defendants, and the receipt so states. At the end of practice, however, had been settled for many years, and great mischief would

two days the olerk or messenger calls at the registry office and the probate arise if it were departed from. Under the circumstances B. was right in is banded to him upon prodaotion of the receipt, unless the documents proceeding with his petition. . If a petitioner, after he knew of the previous previously left by him bave been found incorrect or insufficient. If any presentation of another petition, went on with his own petition, he would question should arise as to the correctness or sufficiency of the doonments, do so at his own risk as to costs. But here it turned out that B. was fully such question is communicated to the clerk or messenger and by bim to the justified in going on.-SOLICITORS, Bellamy, Strong, f. Co.; G. S. & H. defendants, who inform the solicitor from whom they received the doco. Brandon ; Plunkett & Leader : D. Howell ; F. Romer.

ments thereof, when, upon a satisfactory reply being given, the same pro cedore as before takes place. Throughout all the proceedings the

name of the solioitor from whom the document is received alone LUNATIC - ENFRANCHISEMENT OF COPYHOLDS-POWER OF COURT OF appears. The defendants have pursued this courgo with the knowLUNACY TO IMPOSE TERMS—ALTERATION OF RIGHTS INTER SE OF PERSONS ledge of the officials at Somerset House for some years. Upon the INTERESTED IN LUNATIC's Estate.-In a case of In re Ryder, before the Court second visit of the clerk or messenger, he, if the documents are soffi. of Lunacy on the 4th inst., a question arose as to the entranchisement of copy-cient, hands a stamped form purchased from the Commissioners of Inland hold land belonging to a lunatic. The lunatic was seised in fee of some copy- Revenge and paid for by the defendants' cheque. The defendants only holde, holden of a manor according to the custom of wbich lands would perform the work above described in cases in which they are employed as law descend as in gavelkind. The committee of the lunatic's estate petitioned stationers to engross the documents. The defendants muke a charge, and in the court for directions as to the enfranchisement, and the court (Jessel, making this charge they only calculate the time occupied by the clerk or M. R., and LINDLEY, L.J.) held that the enfranchisement could only be carried messenger in his visits to the Registry and Stamp Offi:e. In all cases the out with the leave of the court, and that, in granting that leave, the court London solicitor is also a customer in the defendants' stationery business. could impose terms, and that the principle applied that the Court of Lunacy The messenger or clerk has bad no legal training, but is an apprentice to the would never alter the rights inter se of persons interested in the estate of a defendants as law stationers. The solicitor charges the full fees allowed by lunatic. They accordingly made a declaration that, in the event of the luna. the Probate Court to his client for obtaining grant of probate. The Probate tic dying intestate as to his lands within the manor, bis beir-at-law would Coart will not receive the papers unless the name of a solicitor applying for stand seised of so much thereof as should be of freebold tenure in trust for the probate appears thereon, and the defendants in all cases receive papers with persons who would bave been his heirs according to the custom of the manor, the names so written thereon by the solicitor employing them. The only if the eame had not been enfranchised.-SOLICITORS, Davidson, Burch, & difference in the facts of the second case was that the defendants in that Whitehead.

case acted only for and in the name of solicitors practising in the country.

The actions were tried before Mr. Justice Grove, in Middlesex ; the jury were CHARITY-SCHEME-LEASING POWERS OF TRUSTEES-CHARITABLE TRUSTs discharged ; by consent judgment was entered for the plaintiffs for £50, being Act, 1853, s. 21- APPEALCosts.-In a case of In re Smith's Charity, the amount of one penalty, and execution was stayed to enable the opinion of before the Court of Appeal on the 6th inst., a question arose 88 to the leasing the Court of Appeal to be taken by the defendants, who appealed. powers which sbonld be given to the trustees of a charity. The charity was E. Clarke, Q.C., and Bremner, appeared for the defendants Sbaw and founded in 1625, and in 1855 a scheme for its administration was approved another, by the Court of Chancery. This scheme contained a clause (No. 18) which Sir H. James, A.G., Willis, Q.C., and Finlay, for the defendants Waterlow authorized the trustees to grant building leases of the lands belonging to the and others. charity for a term of ninety-nine years absolute, or for twenty-one years with a Sir H. S. Giffard, Q.C., G. A. R. FitzGerald, and R. T. Reid, for the covenant for perpetual renewal at the expiration of every twenty-one years, plaintiff-. on payment to the trustees on each renewal of a fine of half the then annual BRETT, L.J., after reviewing the facts of the case, pointed out that for value of the demised premises, and subject to the payment of such rent, and what the defendaots did they were not paid solicitors or proctors' fees ; under such covenants and conditions as to the Charity Commissioners should they charged their employers only for the time during which they or their seem fit. In July, 1880, the Commissioners certified to the Attorney-General clerks were engaged in going to and fro, or were kept waiting; were they, that, in their opinion, it was desirable to call his attention to the matter with then, liable for the penalty ? It had been argned that, oven although it the view of bringing before the Chancery Division, if he should think fit, the was a proceeding in a court, yet, nevertheless, the defendants were not question of the propriety of the continuance of the powers conferred upon liable, even though they drew documents and prepared affidavits for the the trustees by clause 18 of the scheme of inserting covenants for the per purpose of obtaining probate, as section 26 applied only to things done in petual renewal of leases granted by them. The Attorney-General then the course of contentious business in court. Now, obtaining probate for a applied to the court to strike out clause 18 from the scheme, and Chitty, J., will had been declared to be work whioh could be done only by a solicitor ordered this to be done. This, he said, would leave the trustees, so far as or proctor (with the exception of an executor). What the defendants did building leases were concerned, to the general powers of leasing conferred by was the last act in obtaining probate ; what they did was clearly a section 21 of the Charitable Trusts Act, 1853, which the Legislature had proceeding in the coart; were they, then, within section 26 of the thought sufficient for all cbarities. The trustees appealed, and the decision Solicitors Act, 1860 ? That section enacted that & person must was affirmed by the Court of Appeal (JESSEL, M, R., Sir JAMES Hannen, and not act as a proctor or solicitor for himself or in the name of LINDLEY, L.J.). JESSEL, M.R., thought that the power of leasing must have anybody else if he were not duly qualified ; the section did not apply to a been inserted in the scheme of 1856 by a slip. The scheme was settled in pur- person who was not acting for himself at all. The defendants, in these cases, suance of a master's report made in 1846, and the court must have overlooked were not acting as proctors in their own behalf; they were acting for solicitors the general powers of leasing which were conferred by the Charitable Trusts 98 mere agents, in the name of those solicitors and with their authority. They Act of 1853. The evidence might prove that a twenty-one years' lease, with were paid for what they did, but not by fee as a proctor-only with the fee o a covenant for perpetual renewal, was more advantageous than a lease for a messenger. The section was aimed at persons, who were not duly qualified ninety-nine years, but it did not follow that it was better than a lease for, pretending to be other than they were. In his opinion, therefore, the defend e.g., 999 years. It was well known that leases renewable on the payment an's did not come within the section. Nor were the defendants liable ander 40 of a fine had been now generally abandoned, because that was a disadvan- & 41 Vict. c. 62 ; though, if they were to undertake to draw documents and prepare affidavits for the purpose of obtaining probate, they would come within any qualification, or otherwise than as is expressed. I shall, therefore, that statute.

exercise the jurisdiction which I consider I possess, and make the order in the Corton, L.J., after observing that there was no difference in principle between terms of the notice of motion. I feel no difficulty as to the application being the two cases, said that the question raised was whether the defendants, who made in the name of the plaintiffs in the action, because it is apparent, on the had acted bonâ fide, had rendered themselves liable under the Act. In bis face of the notice of motion, that they are the parties in the action for whose opinion they bad not, inasmuch as they had not acted for solicitors' profit or benefit the payment of this sum of money was to be made, and they are there proctors' profit.

described as • Messrs. Bradley & Currier, by Mossrs. Pritchard, Englefield, & HOLKER, L.J., delivered judgment to the same effect. ---Times.

Co., their solicitors," and are, in fact, the persons who would receive the money
in the ordinary course.

Solicitors, Pritchard, Englefield, & Co.; Woodfin f Wray.

(Before Hall, V.C.).

March 2.-In re Woodfin & Wray, Solicitors.

(Before J. B. DASENT, Esq., Judge.) Practice-Solicitor's undertaking-Jurisdiction to enforce undertaking.

March 3.-Hurrington v. Westhorp. A solicitor for the defendant in an action signed an undertaking whereby he agreed on behalf of his firm to pay to the solicitors for the

Employers' Liability Act, 1880, s. 1, sub-section 3-Evidence of

negligence, plaintiffs in the action an agreed sum for the costs of an attachment against his client, under which the latter was detained in prison. Upon

The plaintiff, a stevedore, sued the defendant, a master stevedore, for £200, the undertaking the plaintiffs' solicitors signed a consent to the release compensation for bodily injuries received whilst in his employ in consequence of the defendant.

of the negligence of the defendant's workmeo. Held, that the court before which the action was pending had juris

Glyn appeared for the plaintiff. diction to make an order, on the application of the plaintiffs, against the

Ruegg appeared for the defendant,

The plaintiff, in his particulars of demand, delivered in pursuance of the defendant's solicitors for the payment of the agreed sum to the plaintiffs' County Court Rules, 1880 (ord. 396., r. 3), relied opon the negligence of two solicitors.

of the defendant's workmen, named Johnson and Stacey. Motion.

The facts were as follows:This was a motion by Messrs. Bradley & Carrier, manufacturers, for an The plaintiff was employed on December 16, 1881, with a gang of stevedores order that Messrs. R. J. Woodfin and A. W. Wray should forth with pay to loading the s.s. Glenifer. At about six p.m., the gang being at that time the applicants, or to Messrs. Pritohard, Englefield, & Co., their solicitors, stowing the cargo in the 'tween decks under the superintendence of the forethe sum of £13 16., 8d., purslant to an andertaking dated the 8th of man Johnson, the plaintiff was ordered by Johnson to fetch some dunnage December, 1881, and that they might be ordered to pay to the applioante wood. To carry out this order it was necessary to go up through the hatchtheir costs of and relating to the application.

way by a ladder and on to the deck. Whilst plaintiff was ascending the The circumstances were as follows:

ladder a bale of goods weighing five hundred weight, whioh was being lowered Messrs. Pritchard, Englefield, & Co. were the solicitors for Mesarg. into tbe hold by a steam crane, struck him, and occasioned the injuries in respect Bradley & Currier in an aotion in big lordship's division of the court against of which be sued. Mr. J. S. Pilbrow, and Messrs. Woodfio & Wray were the solicitors for Among the duties of Stacey, who was in command of the hatchway, was to Pilbrow in the action.

give warping of the lowering of goods by calling ont, “Stand from under.” On November 17, 1881, the plaintiffs in the action obtained an order, It was admitted that Stacey on this occasion did so, but there was conflicting whereby it was ordered that they should be at liberty to issue a writ of evidence upon the point as to whether he waited a sufficient time atter attachment against Pilbrow for his contempt in not oomplying with an calling out before allowing the goods to be lowered. order of the 1st of August, 1881, whereby he was ordered to answer certain It was admitted that Stacey's usual duties were those of manual labour, and interrogatories, and to pay the costs of the application. In pursuance of it was submitted on behalf of the defendant that, even assuming Stacey's con. tbe order, Pilbrow was arrested and lodged in Holloway Prison.

duct to have been negligent, the employer could not be held responsible under On December 8, 1881, Mr. Woodfio, of the firm of Woodfin & Wray, called the Act. It was also submitted that the order given by Johnson was one upon Messrs. Pritchard, Englefield, & Co., and saw Mr. T. H. Pritobard, which was quite capable of being executed safely, and, therefore, could not be of that firm, and requested him to consent to the release of Pilbrow on his said to be a negligent order, so as to make the employer responsible. answer to the interrogatories being filed.

The Judge directed the jury that the objection taken as to Stacey was a good So far the facts were andisputed, bat Mr. T. H. Pritobard, in his one, and left to the jury the question as to whether Johnson had been guilty of evidence on the present motion, swore that he made it a positive term of any negligence, either of commission or of omission. his consent that the agreed amount of costs of the motion for attachment

The jury found a verdict for the defendant. (£13 169. 8d,) should be first paid, and that, on Mr. Woodfin saying that

Solicitor for the plaintiff, Ward. he had not a cheque with bim at the time, but was very anxious that Pilbrow

Solicitors for the defendant, Watson, Sons, f Romo. should be released at once, Mr. Pritchard agreed to accept the following undertaking :

" Painters' Hall, London, E.C., Dec. 8, 1881. “Mesers. Pritchard, Englefield, & Co.

SOCIETIES. Pilbrow v. Bradley. “We undertake to file to-day defendani's affidavit produced to you and to pay you £13 16s. 8d., costs of motion.


MANCHESTER INCORPORATED LAW ASSOCIATION. Mr. Woolfin's case was that, at the interview with Mr. Pritchard, he dis

The annual general meeting of the members of this association was held on puted the right to make payment of costs a condition precedent to the release, Friday, the 20th of January, at their rooms, Cross-street Chambers, Cross, and that, upon Mr. Pritchard asserting that he was certain as to the practice, street, when an account of the receipts and disbursements (previously audited and had often acted upon it in similar cases, he gave the undertaking subject to by two of the members) was submitted and passed, and the officers and com. his being satisfied by subsequent inquiry as to the practice, in particular by mittee were elected for the ensuing year. reference to certain reported cases which Mr. Pritchard bad cited. The prisoner was released as agreed, but Mr. Woodfin being subsequently which was unanimously adopted.

The proceedings of this society for the last year were stated in the report, convinced, as the result of his investigations, that Mr. Pritchard was wrong in his statement as to the practice, refused to pay the costs according to the undertaking, asserting that they were payable bg the party in contempt in the The following are extracts from the report:ordinary way.

The committee congratulate the members upon the continued prosperity of Mr. Pritchard and Mr. Woodfia were at issue in their evidence as to the fact the society, and a further increase in the number of its members. wbether or not the undertaking was in any way conditional.

The Customs and Inlınd Revenne Act, 1881.-0n an inquiry being made by Farwell, for the motion.

the Bolton Incorporated Law Society as to the mode of dealing with cases Graham Hastings, Q.C., for the respondents.

under section 33-viz., applications for probate where the gross value is under HALL, V.C.-I have no doubt whatever that this court ought to bave, and £300, a sab.committee was appointed to make further inquiries and consider the in fact has, jurisdiction to make an order against the solicitor who signed this subject. A copy of the report made by this sub-committee will be found in document. The document is clear and express and unqualified in its terms. Appendix A. to this report. If it had been meant to be qualified in the way which has been suggested by The following is the report:Mr. Hastings, it should havo been so expressed. This gentleman having, as a We have inquired into the working, in Manchester and surrounding solicitor, personal experience in bis profession, would very well know how to towns, of section 33 of the Inland Revenge Act, 1881. We fiad that no express his undertaking as being qualified or unqualified, whichever view Inland Revenge officer has been appointed to undertake probate work, of the arrangement migbt be the correct one. He has thought fit to give it in an so far as regards Manobeater, nor is it intended to appoint one, inasmuoh up qualified form. He says that it was intended to be subject to certain quali- as Manchester is a registry town. The papers prior to obtaining probate fications, but the solicitor on the other side denies that there were any snch are not prepared, in the surrounding towns, by the Inland Revenue officer qualifications, and although it may be, and possibly is, true, that to exact this there, but are prepared in the district registry from the notice delivered to undertaking was not in accordance with the practice of this court, and although the Inland Revenue officer. The fee of 159. and 309. stamp duty when it may be the fact that Mr. Pritchard was wrong in stating what he did as to payable cover all expenses of every kind, including engrossing probate the practice, still there exists this unqualified engagement. I cannot, upon Papers will, pursuant to instructions from the prinoipal registry, be the evidence before me, hold that the undertaking was accepted as subject to received at the distriot registry from the solicitor (whether practising in

« PreviousContinue »