Page images
PDF
EPUB

REVIEWS.

contract to share losses is to be inferred, they must contribute in proportion to their share in the profits; but the Court of Appeal held that it was the shareholders who, under the peculiar constitution of the society, substantially took the profits, and that it

COMPENSATION.

ΤΟ THE LANDS CLAUSES CONSOLIDATION ACTS. BY C. A. CRIPPS, Barrister-at-Law. H. Sweet.

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 shareholders. Either, therefore, the losses must have been divided between the two classes of members per capita, or the shareholders be held primarily liable for them; and the former course seemed so unreasonable that the latter was adopted by the

court.

A further question afterwards arose in Brown's case (L. R. 18 Ch. D. 639)—namely, whether a policy-holder, who had duly assigned his policy, notice of the assignment having been given to the society, but no other person having been registered as a member in his stead, could still be placed on the list of contributories. In this case Mr. Justice Fry, from a careful review of the articles of association, drew the conclusion that the whole scheme of them was that a holder of a policy was to be a member of the company, but that when he ceased to be a holder he ceased to be a member, and was consequently not liable to be placed on the list of contributories; and the extreme hardship to original policy-holders, having assigned their policies, which would have resulted from a contrary decision was happily averted.

It is to be observed, however, that the question what was the extent of the liability of the policy-holders was not really concluded by any of the foregoing cases. In Winstone's case the sole point decided was that the policy-holders must be placed on the list of contributories, but the questions to what extent they were liable, and what was the extent of the liability of the two classes of contributories as between themselves, were both expressly left open. In the Albion Society's case the latter question only was decided; and it was determined that until the shareholders were unable to pay, the policy-holders must not be resorted to at all.

From an adjourned summons which was opened before Mr. Justice Fry on the 16th ult., but which stood over for further evidence, it appeared that the shareholders have now been exhausted, and, as might have been expected, the court is now called upon to decide the extent of the liability of the policyholders, and not only this, but how they, who are themselves creditors for the amount of the value of their policies, are to rank in relation to the outside creditors of the company.

It is impossible not to commiserate the case of the policyholders, and the lesson to be deduced from their fate is obviousnamely, the importance before signing a proposal for a policy of thoroughly mastering the nature of it, and the liabilities involved in it. Had this been done, probably there would have been fewer policy-holders in the Albion Assurance Society.

We are informed that Mr. Robert Murray, of Collatten, has been appointed Valuer to the Irish Land Commission.

The Canada Law Journal announces that the Attorney-General has introduced an Act for simplifying the practice of conveyancing and amending the law of property. It seems to be a reprint, to a great extent, of Lord Cairns' Act.

On the 4th inst. the Queen's Bench Division (Field and Bowen, JJ.) heard county court appeals, and in the first case Mr. Justice Field, it being stated that the judge's notes, taken merely for his own information, had been by 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 imperfect, and he really wished the judge would take a better note in future. In another case, in which the county court judge had set out the whole of the evidence of the witnesses in extenso, which filled eighteen brief sheets, instead of stating succinctly what were the facts proved in evidence (as is usual in stating a case for the court) the learned judge observed that this was very inconvenient, and very oppressive to the parties; it put the court to 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 these sheets copied and re-copied, thus throwing upon them a great unnecessary expense for law stationery. It was a small matter which was at stake, and the parties were put to all this needless expense. In another case the learned judge said the case did not show what the point was which the county court judge had decided, nor what he had decided, nor on what ground or reason he had decided it, and the case must go back to him to be re-stated. It was essential, said the learned judge, to the exercise of the right of appeal, that the judge should take notes of the evidence, and state the facts proved and the points decided clearly and distinctly, so as to enable that court to understand them.

This is a remarkably well-written treatise. "Clearness of explanation has been a principal object," we read in the preface, "and this the author has endeavoured to attain by the adoption of a logical method of arrangement." This object has been attained. The arrangement and modes of reference leave nothing to be desired, except that perhaps we might have had references from the various sections of the principal Act to the pages where they are commented on in the text, and that where 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 a useful novelty in works upon the subject, we observe with interest, in chapter 12, a short summary of the rules determining the amount of compensation, but miss from it any allusion to the extra percentage stated by the House of Lords Committee in 1845 to be usually given by surveyors on the ground of the sale being compulsory, in addition to the marketable value of the land. With regard to the way in which the reference to the continual differences between two late Lords Justices on cases are treated, we can speak very highly. We miss, however, some the meaning of the 92nd section of the Lands Clauses Act; and the very difficult question (see Hooper v. Bourne, L. R. 5 App. Cas. 1) whether lands acquired by a company otherwise than under their compulsory powers can ever be treated as "superfluous appears to us to be inadequately treated. Moreover, although the preface bears date June, 1881, not a few important cases reported in 1880-e.g., In re Metropolitan District Railway Company and Cosh (28 W. R. 685, L. R. 13 Ch. D. 607); (28 W. R. 565, L. R. 14 Ch. D. 323); and Askew v. Woodhead (28 In re Metropolitan Street Improvement Act, Ex parte Chamberlain W. R. 874, L. R. 14 Ch. D. 27)-are entirely omitted from the book; nor are there any

"addenda."

THE CONVEYANCING ACT.

THE CONVEYANCING AND LAW OF PROPERTY ACT, 1881, 44 & 45 VICT. c. 41 (BEING AN ACT TO SIMPLIFY CONVEYANCING), WITH INTRODUCTION, SUMMARY, AND PRACTICAL NOTES AND CONVEYANCING PRECEDENTS, &C. THIRD EDITION. By J. S. RUBINSTEIN, Solicitor. Waterlow Bros. & Layton. A critic must be expected to view the third edition of a book with more rigorous eyes than the first. In his third edition Mr. Rubinstein has corrected some slips and errors, and has improved and enlarged his commentary. There still remains room for further emendation. The note formerly at p. 22, now at p. 32, has with great propriety been made to precede section 13, instead of following it. But the explanation of 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 forbids him to call for the title of his lessor's lessor. But we do not care to dwell upon these matters, because in our eyes the chief merit of the little book is its excellent index and very useful appendix of statutes. 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, No. 33 now shows upon the face of it (which in its former shape it did not) that the person purporting to convert a long term into a fee simple is entitled in right of the term. It might be still further improved by using in the second recital the exact language of the Act, instead of some other language which probably comes to the same thing, for it is a fixed rule with conveyancers not to use the latter when they can get the former. Moreover, the operative part would certainly be no worse if it expressly purported to be by virtue of the Act; and in the phrase "the term created by the said lease shall be, and the same is hereby enlarged into a fee simple," the words in italics had better be left out. The Act contains nothing to authorize the use of the present tense in addition to the future. By venturing into this difficult region, where we think some greater people have been caught stumbling, Mr. Rubinstein has perhaps shown more courage than discretion. And precedents stand little chance of being adopted in practice, unless they are recommended by great professional weight in their author's name.

CONVEYANCING.

COMMON PRECEDENTS IN CONVEYANCING, TOGETHER WITH THE CONVEYANCING AND LAW OF PROPERTY ACT, 1881, AND THE SOLICITORS' REMUNERATION ACT, 1881. By HUGH M. HUMPHRY, Barrister-at-Law. Stevens & Sons. The author of this work is, to some extent, a victim of the astonishing swiftness with which the Conveyancing Bill was hurried through its final stages at the close of the last session. From his preface we gather that he, like many other people, did not expect the Bill to pass. We can imagine few surprises more disagreeable to an author who has just

most oppressive use made of interrogatories to ascertain the profits made by a business after a sale of it. The old practice was most cruel, and rule 19 of order 31 gave the judge a power of putting a stop to it, notwithstanding the old decisions. That rule appeared to apply exactly to the present case. It was precisely a case in which it would be cruel and oppressive in the extreme to compel this discovery to be made until after the plaintiff had established her right.-SOLICITORS, H. Windybank; Robinson, Preston, & Stow.

printed a book of precedents; not, indeed, that we credit the Act with the power to effect anything like a transformation scene in conveyancing, but because the public always expect to find a book furnished with the "latest improvements." Mr. Humphry has attempted to supply the want by printing the Act as an appendix; and he suggests that, "for 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 improved, 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 being left alone; and we have certainly met with cases in which great haste and boldness in applying the Act to conveyancing has not been attended with happy results. But Mr. Humphry seems to anticipate a wide application for the Act; and if this expectation should be realized, we fear that the public will require to have the Act applied for them. Very few will have the daring to trust themselves in this matter to their own sole guidance. It has become a difficult thing to show much originality in drafting such simple forms as are here given. We are by no means clear that Mr. Humphry's divergences from the beaten track always commend themselves to our judgment. For example, it is usual in a marriage settlement of stocks and similar securities to preface the declaration of the trusts by a general investment clause, and to make the trusts refer to the income and corpus of the investments contemplated by this clause. But Mr. Humphry seems to prefer to make the trusts speak directly of the income and corpus of the settled property itself, providing long afterwards and in a remote part of the draft, that it may be invested in other ways. We cannot see how anything is gained by this method, which has a particularly awkward look when applied to a policy of assurance, abruptly introducing the income of the policy-moneys (p. 100), which can have no income until investment.

CASES OF THE WEEK.

COMPANY-WINDING UP-CLAIM-POWER of Court to ENLARGE TIME FOR PUTTING IN AFFIDAVITS TILL AFTER CROSS-EXAMINATION OF CLAIMANTDISCRETION OF JUDGE.—In a case of In re The Marseilles Extension Railway and Land Company, before the Court of Appeal on the 2nd inst., an application was made by the liquidator of the company to have the time enlarged for his filing affidavits in opposition to a claim to prove in the liquidation until after he should have cross-examined the claimant upon his affidavit in support of his claim. The reason alleged for the application was that the liquidator had been only recently appointed in saccession to a all the documents and evidence in relation to it were in the possession of the former liquidator, that he knew nothing of the facts relating to the claim, that claimant, and that it was impossible for him to set up his defence until he had an opportunity of cross-examining the claimant. Fry, J., had refused the application, and his decision was affirmed by the Court of Appeal (JESSEL, M.R., and LINDLEY, L.J.). JESSEL, M.R., said that it was not the practice to delay the filing of the respondent's affidavits in such a case until after the claimant had been cross-examined. His lordship did not mean to say that the court had not jurisdiction to enlarge the time for filing the affidavits, but when the judge of first instance had exercised his discretion, it was not the practice of the Court of Appeal to interfere, unless it was shown that there had been a gross miscarriage. Nothing of the kind had 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 claim for leave 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 ordinary course was not to postpone the putting in of the affidavits until after discovery had been obtained from the other side, the judge had power to do so. But Fry, J., in the exercise of his judicial discretion, had thought fit not to do so in the present case, and no reason had been shown for the interference of the Court of Appeal.-SOLICITORS, Harrison & Co.; G. S. & H. Brandon.

DISCOVERY INTERROGATORIES ACCOUNTS OF PROFITS DENIAL OF PLAINTIFF'S TITLE-ORD. 31, R. 19.—In a case of Hemery v. Worssam, before the Court of Appeal on the 3rd inst., a question arose as to discovery. The action was brought by one of the next of kin of an intestate, who died in 1869, to set aside a sale which she had, in 1871, made of her share in a business which the intestate had carried on to some others of the next of kin. The plaintiff had delivered interrogatories for the examination of the defendants, and had (inter alia) required them to state what the pronts of the business had been since the sale. And the question was whether the defendan's were bound to answer this. Fry, J., had held that they were not, and the Court of Appeal (JESSEL, M.R., and LINDLEY, L.J.) affirmed the decision. It was urged that the discovery might assist the plaintiff in showing that the defendants had purchased at a gross undervalue, and that, therefore, it might have a material bearing on her success at the trial, her case being that she had executed the assignment to the defendants without understanding the nature of it. JESSEL, M.R., said that the question must be decided, not with reference to the old practice of the Court of Chancery, which in this respect greatly needed alteration, but with reference to rule 19 of order 31. Prima facie the defendants would have to show that the sale in question was a fair one. They alleged that it was, and they entirely denied the plaintiff's title to relief. The plaintiff asked them to state what profits they had received from the business since the sale by her. They stated what the profits had been up to the time of the sale, but they declined to state what the profits had been since. Fry, J., was of opinion that the discovery would not aid the plaintiff in obtaining a decree, and that it would not be fair to call on the defendants to make the discovery, and the Master of the Rolls thought that this decision was right. In the first place, it was not accurate to say that the plaintiff, if she succeeded, would be entitled to the profits made by the defendants from her share of the business; she would be entitled only to her proportion. The defendants would be entitled to an allowance in respect of any fresh capital which they had brought in. And his lordship adhered to what he said in Parker v. Wells (L. R. 18 Ch. D. 477), that the mere fact that the discovery sought might enable a plaintiff to obtain an immediate decree would not be a sufficient reason for requiring the defendant to set out long and intricate accounts, or the result of long and intricate accounts. It was by no means an easy thing to say what the profits of a business were. It required a vast number of inquiries and intricate calculations, and of course, if they did answer, the defendants would not answer positively, but would take care to guard themselves against errors. Then of what use would the discovery be to the plaintiff? The business might have been very unprofitable before the sale, and might have become profitable since, by reason of fresh capital having been brought in, or of the personal attention of the defendants. The dis covery would not be valuable evidence of the profits at the time of the sale. It would not help the plaintiff in obtaining a decree, and it would be oppressive on the defendants. As to the case of Saunders v. Jones (26 W. R. 226, L. R. 7 Ch. D. 435), the fifth interrogatory which was allowed there did not ask for an account of profits, but simply for an account of the aggregate amount received by the defendant in respect of the sales which had been made by him, which of course the books would show. It was that upon which James, L.J., relied, and he also said that the matter was within the discretion of the judge of first instance, from whom he thought it would be impossible to differ. In the present case the judge had decided the opposite way. The Master of the Rolls had no doubt about the matter, but if he had, he should say that he would not differ from the judge of the court below. LINDLEY, L.J., said that under the old practice of the Court of Chancery, he had seen a

"within

REMOTENESS-SALE OF LAND WITH UNLIMITED COVENANT BY PURCHASER TO RE-CONVEY ON REQUEST OF VENDOR-RAILWAY COMPANY-SALE OF SUPERFLUOUS LANDS-LANDS CLAUSES CONSOLIDATION ACT, 1845, s. 127COSTS-COPIES OF SHORTHAND WRITER'S NOTES.-On the 6th inst. the Court of Appeal (JESSEL, M.R., Sir JAMES HANNEN, and LINDLEY, L.J.) reversed the decision of Kay, J., in the case of The London and SouthWestern Railway Company v. Gomm (30 W. R. 321). Two important questions arose in the case- (1) whether a conveyance of land in fee, with an unlimited covenant by the grantee for the re-conveyance of the land by him or his heirs to the vendor or his heirs at his or their option, is void as being obnoxious to the rule against perpetuities; (2) whether such a conveyance by a railway company of their "superfluous lands" is valid within section 127 of the Lands Clauses Act. Section 127 of the Act provides that, the prescribed period, or, if no period be prescribed, within ten years after the expiration of the time limited by the special Act for the completion of the works, the promoters of the undertaking shall absolutely sell and dispose of all such superfluous lands" (.e., lands acquired by the promoters of the undertaking, and not required for the purposes thereof)," and apply the purchase-money arising from such sales to the purposes of the special Act; and, in default thereof, all such superfluous lands remaining unsold at the expiration of such period shall thereupon vest in and become the property of the owners of the lands adjoining thereto, in proportion to the extent of their lands respectively adjoining the same.' In the present case the plaintiff company in August, 1865, conveyed a piece of land, which adjoined one of their stations, for £100, to one Powell, who was the owner of adjoining land, in fee. The piece of land was described in the deed as "land no longer required for the purposes of the railway," and there was a recital that the company had contracted to sell it to Powell, "subject to the conditions herein contained." The deed contained a covenant by Powell, for himself, his heirs, executors, administrators, and assigns, with the company, their successors and assigns, that he, his heirs and assigns, owner and owners for the time being of the land thereby conveyed, and all other persons who should or might be interested therein, should and would at any time thereafter (whenever the said land might be required for the railway or works of the company), whenever thereunto requested by the company, their successors or assigns, by a six calendar months' previous notice in writing, to be left at the last-known place of abode of Powell, his heirs or assigns, owner or owners for the time being of the said land, and upon receiving from the company, their successors, or assigns, the sum of £100, without interest, execute to the company, their successors and assigns, an effectual re-conveyance of the land, free from incumbrances. In 1879 the land was purchased by and conveyed to the defendant, who had notice of the provisions of the deed of August, 1865. On the 12th of March, 1880, the company served notice on the defendant that they required the land for their railway and works, and requesting him to convey it to them at the expiration of six months. And they offered to pay him £100 and the costs of the conveyance on its execution. The defendant refused to comply with the demand, alleging that the conveyance to Powell

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

wes invalid on one or both of the above grounds. The action was brought by the company to compel the defendant to convey the land to them. Kay, J., held that the defendant must specifically perforin the covenant. He beld that the transaction of 1865 was not a conditional sale by the company to Powell, but a sale out and out to him, with a personal contract by him to re-convey, when called on, at a certain price, and that this was not invalid under section 127. His lordship expressed his disapprobation of the decisions in Gilbertson v. Richards (5 H. & N. 453) and The Birmingham Canal Company v. Cartwright (27 W. R. 597, L. R. 11 Ch. D. 421). In the latter case Fry, J., beld that an option of re-purchase of land, unlimited in point of time, was not a violation of the rule against perpetuities, because the right might at any time be released by the person entitled to it to the owner for the time being of the land. But Kay, J., held that in the present case the covenant by Powell did not give the company any estate or interest in the land, but that it was a mere personal covenant, binding only on assignees of Powell who took with notice of it, and that, consequently, the rule against perpetuities did not apply. It was urged in the Court of Appeal that the principle of the cases, such as Tulk v. Moxhay (2 Phil. 774), in which it was held that an unlimited restrictive covenant as to the use of land is binding in equity on an assign who takes with notice of it applied. JESSEL, M.R., said that the covenant by Powell was unlimited in point of time, and it did not appear to his lordship possible to insert in it any limit of time. To insert the words" within a reasonable time" would be contrary to the intention of the parties. The covenant was evidently intended to be unlimited in point of time. The company did not know whether they would ever want the land for their railway, and it was of the very essence of the covenant that it should be unlimited in point of time. The limit which was implied by the court in Kemp. The South-Eastern Railway Company (20 W. R. 306, L. R. 7 Cb. 364) -viz., the period limited for the exercise of the company's compulsory powers to take land-could not be implied here, because the compulsory powers had expired before the date of the conveyance. If this was so, and if the covenant fell within the rule against remoteness, the legal period was exceeded. Was the covenant then within the rule? That depended upon whether it created an interest in the land. If it was a mere personal covenant, of course it was not within the rule. But even then it was impossible to see how the present defendant could be bound by it, for he did not enter into the covenant. The plaintiffs, therefore, must admit that it bound the land somehow, and, if so, it created an equitable interest in the land. A contract to sell land clearly gave an equitable interest in the land; an option to purchase was in substance the same thing. The land was thereby taken away from the owner without his consent, on the giving of the notice and the payment of the specified price, and there was no distinction between one kind of equitable interest and another, except in the case of a charity. The interest must take effect within the prescribed period. The question was, not how the interest was created, but what was the nature of the interest which was attempted to be created. His lordship thought he could not do better than read the definition of a perpetuity given in Sanders on Uses, quoted in Lewis on Perpetuities, p. 164:-" A perpetuity may be defined to be a future limitation, restraining the owner of the estate from aliening the fee simple of the property discharged of such future use or estate, before the event is determined, or the 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 limitation, whether executory or by way of remainder, and of either real or personal property, which is not to vest until after the expiration of, or will not necessarily vest within, the period fixed and prescribed by law for the creation of future estates and interest, and which is not destructible by the persons for the time being entitled to the property subject to the future limitation, except with the concurrence of the individual interested under that limitation." Was there any substantial distinction between a contract for purchase, an option to purchase, and a limitation upon a condition? Could it make any substantial difference whether there was a limitation to A. in fee, provided that, whenever B. or his heirs should send A. or his heirs £1,000, the estate should vest in B. or bis heirs, or whether there was a contract that, in that event, A. or his heirs should convey the estate to B. or his heirs? His lordship could not see that there would be any difference in a court of equity. And what difference could it make that the contract, instead of being that the land should be conveyed on payment of the £1,000, was only that B. should be entitled to a conveyance in that event? His lordship was of opinion that Mr. Justice Kay was quite right in his view of the authorities, including the decision of Fry, J., in The Birmingham Canal Company v. Cartwright, which must now be treated as overruled. But Kay, J., was wrong in holding that the covenant did not create an interest in the land. He forgot that, if it did not, he could not make a decree against the defendant Gomm. If the covenant did not, so to say, run with the land in equity, it could not be enforced against Gomm. As to the cases upon restrictive covenants, the doctrine of those cases had been lately fully considered by the Court of Appeal in Haywood. The Brunswick Benefit Building Society (30 W. R. 299), and the court there decided that they would not extend the doctrine of Tulk v. Moxhay to affirmative covenants, but that it must be confined to restrictive covenants. His lordship thought that was a right decision, but, at any rate, this court was bound by it. Rightly considered, Tulk v. Moxhay was not an authority for saying that any equitable interest in land might take effect at any time without regard to its remoteness. Tulk v. Mozhay was an extension in equity of Spencer's case to another line of cases, or an extension of the doctrine of negative easements, such as the right to access of light. It established an exception on the common law right. The owner of the estate took it subject to the burden, though, if he had no notice of the covenant, he took the estate free from the burden. But that did not affect the nature of the burden. As to the question whether the convevance was not ultrà vires of the company under section 127, his lordship thought that section meant that if, at the expiration of the statutory period the land was superfluous, the company must sell it, under the penalty of their

No doubt, before the expira

losing it by its vesting in the adjoining owner. tion of the statutory period the company might determine that the land was superfluous and might then sell it, and no doubt, also, at the expiration of the ten years, if the responsible advisers of the company determined that the land was wanted for the purposes of the undertaking, the company could keep it. But, when once the land had been determined to be superfluous it must be immediately sold, or it would vest in the adjoining owner. In either cas', no interest in the land could be retained by the company. If his lordship was right in what he had already said, the company did in the present case retain an equitable interest in the land, and the Act required that they should make an absolute sale. Consequently the land either revested absolutely in Powell, or he, or his successor, had obtained a good title to it by the Statute of Limitations. Sir JAMES HANNEN thought that the company were estopped from denying that the land was not "superfluous land" at the time of the sale to Powell. It was plain that they could only sell it subject to the terms imposed by section 127, and that required that they should "absolutely sell." Particular stress was laid on the word "absolutely." The object was to prevent the company, after it was found that the land which they had acquired was not wanted for the purposes of their railway, from still retaining a hold on the land. His lordship did not think that a contract by a company to settle the price at which they should acquire land at a future time would be invalid, if some time for their so doing was limited. Kemp v. The South-Eastern Railway Company was an authority for that. But he thought that it would be a startling thing to say that a power to require a conveyance of land to be made at a future time did not create an interest in the land. And, if it did, and it was unlimited in time, it was quite clear that it violated the rule against perpetuities. If the covenant did not create any estate or interest in the land, it clearly did not run with the land at law, and Haywood v. The Brunswick Benefit Building Society had put a wholesome restriction on the application of the doctrine of Tulk. Moxhay, by confining it to restrictive covenants. LINDLEY, L.J., said that the plaintiffs were bound to show on what legal principle the defendant was bound by a covenant into which he did not enter. It was not pretended that the covenant bound him at law; but it was said that he was bound in equity because he bought the land with notice of the covenant. assumed that every purchaser of land with notice of a covenant which had been entered into by his predecessor in title was bound by it. That, however, was precisely the proposition which was dealt with by Haywood v. The Brunswick Benefit Building Society. If the principle of Tulk v. Moxhay did not apply, the defendant was not bound by the covenant, and that was enough to dispose of this case. His lordship, however, agreed in what had been said about the rule against perpetuities and the effect of section 127.

That

The appeal was allowed with costs, including the costs of copies of a shorthand writer's notes of the judgment of Kay, J. But JESSEL, M.R., said that those copies had not been used by the court, for they had used a report of the judgment of Kay, J., in the Law Journal reports. That report, however, had been published only just before the hearing of the appeal, and, no doubt, the copies of the shorthand writer's notes had been made before the publication. If the printed report had been published some time before the hearing of the appeal, the costs of the written copies of the judgment would not have been allowed.SOLICITORS, Wright & Pilley; M. H. Hall.

COMPANY-WINDING-UP-APPOINTMENT OF LIQUIDATOR AT HEARING OF PETITION-WINDING-UP PETITION PROCEEDED WITH AFTER NOTICE OF PRIOR PETITION-COSTS-GENERAL ORDERS OF NOVEMBER, 1862, R. 8.-In a case of In re The General Financial Bank, before the Court of Appeal on the 3rd inst., the question arose whether it is in accordance with the practice of the court under the Companies Act, 1862, to make an appointment of an official liquidator on the hearing of a petition to wind up a company, and there was also a question as to the costs of a creditor who, having presented a winding-up petition without notice of the presentation of any other petition, had gone on with his petition after he had received notice of the previous presentation of another petition. On the 4th of February B., a creditor of the company, presented a petition for its winding up. On February 1 a winding-up petition had been presented by A., another creditor. B. did not know of this petition when he presented his own, but he did know of it before he advertised his petition. He, however, believed that A.'s petition was not a bona fide one, and determined to go on with his own, and it turned out afterwards that, before A. had presented his petition, the company had agreed to indemnify him against the costs of it. Before the petitions came on to be heard an order was made appointing the chairman and the secretary of the company interim receivers and managers of the company until the hearing of the petitions. On the 11th of February A.'s petition came on for hearing before Bacon, V.C. His lordship refused to postpone the bearing until the other petition could be heard, and he made an order to wind up the company, and appointed an official liquidator. On the 24th of February B.'s petition came on to be heard, together with a motion by him that the carriage of the winding-up order might be given to him; that the usual reference to chambers might be directed for the appointment of an official liquidator; and that B.'s costs of his petition might be paid out of the company's assets. Bacon, V.C., refused the motion, and declined to make any order on the petition. JESSEL, M. R., said that he had understood for years past that the practice had been settled, not to make an order appointing an official liquidator on the bearing of a winding-up petition, but to refer it to chambers to make the appointment. The reason for this was obvious. If the order was made at the hearing of the petition, every one who objected to the appointment of a particular person would have to appear by counsel. This would lead to enormous expense, and, moreover, the judge would not be so well able to investigate the matter in court as he would in chambers. His lordship thought this was the settled practice. It was so laid down in Mr. Buckley's book. At al events, his lordship wished to lay it down by a decision of the Court of Appeal, which 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 provisional liquidator at the hearing of the petition, though in most cases the appointment of a receiver would be sufficient. With regard to the cost of B.'s petition, he was a bona fide creditor, and was, at any rate, entitled to his costs up to a certain time. In an ordinary case a petitioner would not be entitled 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 case. 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 next question was what ought now to be done. His lordship thought the proper course would be to discharge the Vice-Chancellor's order and make the usual winding-up order on both petitions. The company would have their costs of both petitions out of the assets. The conduct of the windingup 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 order to take his accounts and to discharge him. There would be a reference to chambers to appoint a liquidator, and the chairman and secretary of the 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 assets. LINDLEY, L.J., agreed that the order proposed by the Master of the Rolls was the right one to make. With regard to the practice as to the appointment of an official liquidator, the 8th rule of the General Orders of November, 1862, under the Companies Act, apparently gave the court power to make the appointment at any time, and this was formerly acted on by appointing the official liquidator in court on the hearing of the winding-up petition. The result was that winding-up petitions used to ask for the appointment of a particular person as official liquidator. It was found that this led to great expense, and the practice grew up of directing a reference to chambers to make the appointment. Of course the appointment might still be made in court if all parties consented to the appointment of a particular person. The practice, however, had been settled for many years, and great mischief would arise if it were departed from. Under the circumstances B. was right in proceeding with his petition. If a petitioner, after he knew of the previous presentation of another petition, went on with his own petition, he would do so at his own risk as to costs. But here it turned out that B. was fully justified in going on.-SOLICITORS, Bellamy, Strong, & Co.; G. S. & H. Brandon; Plunkett & Leader; D. Howell; F. Romer.

LUNATIC-ENFRANCHISEMENT OF COPYHOLDS-POWER OF COURT OF LUNACY TO IMPOSE TERMS-ALTERATION OF RIGHTS INTER SE OF PERSONS INTERESTED IN LUNATIC'S ESTATE. In a case of In re Ryder, before the Court of Lunacy on the 4th inst., a question arose as to the entranchisement of copyhold land belonging to a lunatic. The lunatic was seised in fee of some copyholds, holden of a manor according to the custom of which lands would descend as in gavelkind. The committee of the lunatic's estate petitioned the court for directions as to the enfranchisement, and the court (JESSEL, M. R., and LINDLEY, L.J.) held that the enfranchisement could only be carried out with the leave of the court, and that, in granting that leave, the court could impose terms, and that the principle applied that the Court of Lunacy would never alter the rights inter se of persons interested in the estate of a lunatic. They accordingly made a declaration that, in the event of the lunatic dying intestate as to his lands within the manor, his heir-at-law would stand seised of so much thereof as should be of freehold tenure in trust for the persons who would have been his heirs according to the custom of the manor, if the same had not been enfranchised.-SOLICITORS, Davidson, Burch, & Whitehead.

CHARITY-SCHEME-LEASING POWERS OF TRUSTEES-Charitable TruSTS ACT, 1853, s. 21-APPEAL-COSTS.-In a case of In re Smith's Charity, before the Court of Appeal on the 6th inst., a question arose as to the leasing powers which should be given to the trustees of a charity. The charity was founded in 1625, and in 1855 a scheme for its administration was approved by the Court of Chancery. This scheme contained a clause (No. 18) which authorized the trustees to grant building leases of the lands belonging to the charity for a term of ninety-nine years absolute, or for twenty-one years with a covenant for perpetual renewal at the expiration of every twenty-one years, on payment to the trustees on each renewal of a fine of half the then annual value of the demised premises, and subject to the payment of such rent, and under such covenants and conditions as to the Charity Commissioners should seem fit. In July, 1880, the Commissioners certified to the Attorney-General that, in their opinion, it was desirable to call his attention to the matter with the view of bringing before the Chancery Division, if he should think fit, the question of the propriety of the continuance of the powers conferred upon the trustees by clause 18 of the scheme of inserting covenants for the perpetual renewal of leases granted by them. The Attorney-General then applied to the court to strike out clause 18 from the scheme, and Chitty, J., ordered this to be done. This, he said, would leave the trustees, so far as building leases were concerned, to the general powers of leasing conferred by section 21 of the Charitable Trusts Act, 1853, which the Legislature had thought sufficient for all charities. The trustees appealed, and the decision was affirmed by the Court of Appeal (JESSEL, M. R., Sir JAMES HANNEN, and LINDLEY, L.J.). JESSEL, M.R., thought that the power of leasing must have been inserted in the scheme of 1856 by a slip. The scheme was settled in pursuance of a master's report made in 1846, and the court must have overlooked the general powers of leasing which were conferred by the Charitable Trusts Act of 1853. The evidence might prove that a twenty-one years' lease, with a covenant for perpetual renewal, was more advantageous than a lease for ninety-nine years, but it did not follow that it was better than a lease for, e.g., 999 years. It was well known that leases renewable on the payment of a fine had been now generally abandoned, because that was a disadvan

tageous form of tenure. Property could not be let at so good a rent in that way. But the scheme as it stood would not prevent the trustees from granting leases renewable on the payment of a fine with the sanction of the Charity Commissioners. And the court gave the trustees no costs of the appeal.SOLICITORS, Bell, Brodrick, & Gray; J. M. Clabon.

or

COURT OF APPEAL.

"oath" and

(Sittings at Westminster, before BRETT, COTTON, and HOLKER, L.JJ.) March 2.-The Law Society of the United Kingdom v. Shaw-The Law Society of the United Kingdom v. Waterlow Brothers & Layton. These were actions for penalties against firms of law stationers carrying on business in London, it being alleged that the defendants acted as proctors in the Probate, Divorce, and Admiralty Division without being duly qualified within the Solicitors Act, 1860 (23 & 24 Viot. c. 127), s. 26. The admitted course of business in the first case was as follows:--Solicitors practising in London leave with the defendants original wills for the purpose of being engrossed on parchment in order to obtain probate, with instructions to the defendants to perform the acts hereinafter mentioned as being performed by them; also the document called the "oath" and the "affidavit." In accordance with such instructions the original will and the engrossed copy, are affidavit," together with the sent by a olerk messenger in the employ of the defendants to the principal registry office at Somerset House; the defendants provide the necessary Inland Revenue stamps to discharge the fees payable at the registry office, the defendants being licensed dealers in stamps; the clerk in the registry office gives to the defendants' clerk or messenger a stamped receipt for the above-mentioned documents, which are left in the name of the solicitor, and not in those of the defendants, and the receipt so states. At the end of two days the clerk or messenger calls at the registry office and the probate is handed to him upon production of the receipt, unless the documents previously left by him have been found incorrect or insufficient. If any question should arise as to the correctness or sufficiency of the documents, such question is communicated to the clerk or messenger and by him to the defendants, who inform the solicitor from whom they received the documents thereof, when, upon a satisfactory reply being given, the same pro cedure as before takes place. Throughout all the proceedings the name of the solicitor from whom the document is received alone appears. The defendants have pursued this course with the knowledge of the officials at Somerset House for some years. Upon the second visit of the clerk or messenger, he, if the documents are sufficient, hands a stamped form purchased from the Commissioners of Inland Revenue and paid for by the defendants' cheque. The defendants only perform the work above described in cases in which they are employed as law stationers to engross the documents. The defendants make a charge, and in making this charge they only calculate the time occupied by the clerk or messenger in his visits to the Registry and Stamp Office. In all cases the London solicitor is also a customer in the defendants' stationery business. The messenger or clerk has had no legal training, but is an apprentice to the defendants as law stationers. The solicitor charges the full fees allowed by the Probate Court to his client for obtaining grant of probate. The Probate Court will not receive the papers unless the name of a solicitor applying for probate appears thereon, and the defendants in all cases receive papers with the names so written thereon by the solicitor employing them. The only difference in the facts of the second case was that the defendants in that 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 discharged; by consent judgment was entered for the plaintiffs for £50, being the amount of one penalty, and execution was stayed to enable the opinion of the Court of Appeal to be taken by the defendants, who appealed.

E. Clarke, Q.C., and Bremner, appeared for the defendants Shaw and another.

Sir H. James, A.G., Willis, Q.C., and Finlay, for the defendants Waterlow and others. Sir H. S. Giffard, Q.C., G. A. R. FitzGerald, and R. T. Reid, for the plaintiff.

BRETT, L.J., after reviewing the facts of the case, pointed out that for what the defendants did they were not paid solicitors' or proctors' fees; they charged their employers only for the time during which they or their clerks were engaged in going to and fro, or were kept waiting; were they, then, liable for the penalty? It had been argued that, even although it was a proceeding in a court, yet, nevertheless, the defendants were not liable, even though they drew documents and prepared affidavits for the purpose of obtaining probate, as section 26 applied only to things done in the course of contentious business in court. Now, obtaining probate for a will had been declared to be work which could be done only by a solicitor or proctor (with the exception of an executor). What the defendants did was the last act in obtaining probate; what they did was clearly a proceeding in the court; were they, then, within section 26 of the Solicitors Act, 1860 ? That section enacted that a person must not act as a proctor or solicitor for himself or in the name of anybody else if he were not duly qualified; the section did not apply to a person who was not acting for himself at all. The defendants, in these cases, were not acting as proctors in their own behalf; they were acting for solicitors as mere agents, in the name of those solicitors and with their authority. They were paid for what they did, but not by fee as a proctor-only with the fee o a messenger. The section was aimed at persons, who were not duly qualified pretending to be other than they were. In his opinion, therefore, the defend an's did not come within the section. Nor were the defendants liable under 40 & 41 Vict. c. 62; though, if they were to undertake to draw documents and

[blocks in formation]

Messrs. Pritchard, Englefield, & Co. were the solicitors for Messrs. Bradley & Currier in an action in his lordship's division of the court against Mr. J. S. Pilbrow, and Messrs. Woodfin & Wray were the solicitors for Pilbrow in the action.

On November 17, 1881, the plaintiffs in the action obtained an order, whereby it was ordered that they should be at liberty to issue a writ of attachment against Pilbrow for his contempt in not complying with an order of the 1st of August, 1881, whereby he was ordered to answer certain interrogatories, and to pay the costs of the application. In pursuance of the order, Pilbrow was arrested and lodged in Holloway Prison.

On December 8, 1881, Mr. Woodfin, of the firm of Woodfin & Wray, called upon Messrs. Pritchard, Englefield, & Co., and saw Mr. T. H. Pritchard, of that firm, and requested him to consent to the release of Pilbrow on his answer to the interrogatories being filed.

So far the facts were undisputed, but Mr. T. H. Pritchard, in his evidence on the present motion, swore that he made it a positive term of his consent that the agreed amount of costs of the motion for attachment (£13 169. 8d.) should be first paid, and that, on Mr. Woodfin saying that he had not a cheque with him at the time, but was very anxious that Pilbrow should be released at once, Mr. Pritchard agreed to accept the following undertaking :

"Painters' Hall, London, E.C., Dec. 8, 1881. "Messrs. Pritchard, Englefield, & Co. "Pilbrow v. Bradley. "We undertake to file to-day defendant's affidavit produced to you and to pay you £13 16s. 8d., costs of motion. "WOODFIN & WRAY." Mr. Woodfin's case was that, at the interview with Mr. Pritchard, he disputed the right to make payment of costs a condition precedent to the release, and that, upon Mr. Pritchard asserting that he was certain as to the practice, and had often acted upon it in similar cases, he gave the undertaking subject to his being satisfied by subsequent inquiry as to the practice, in particular by reference to certain reported cases which Mr. Pritchard had cited.

The prisoner was released as agreed, but Mr. Woodfin being subsequently 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 by the party in contempt in the ordinary way.

Mr. Pritchard and Mr. Woodfin were at issue in their evidence as to the fact whether or not the undertaking was in any way conditional. Farwell, for the motion.

Graham Hastings, Q.C., for the respondents.

HALL, V.C.-I have no doubt whatever that this court ought to have, and in fact has, jurisdiction to make an order against the solicitor who signed this document. The document is clear and express and unqualified in its terms. If it had been meant to be qualified in the way which has been suggested by Mr. Hastings, it should have been so expressed. This gentleman having, as a solicitor, personal experience in his profession, would very well know how to express his undertaking as being qualified or unqualified, whichever view of the arrangement might be the correct one. He has thought fit to give it in an unqualified form. He says that it was intended to be subject to certain qualifications, but the solicitor on the other side denies that there were any such qualifications, and although it may be, and possibly is, true, that to exact this undertaking was not in accordance with the practice of this court, and although it may be the fact that Mr. Pritchard was wrong in stating what he did as to the practice, still there exists this unqualified engagement. I cannot, upon the evidence before me, hold that the undertaking was accepted as subject to

any qualification, or otherwise than as is expressed. I shall, therefore, exercise the jurisdiction which I consider I possess, and make the order in the terms of the notice of motion. I feel no difficulty as to the application being made in the name of the plaintiffs in the action, because it is apparent, on the face of the notice of motion, that they are the parties in the action for whose benefit the payment of this sum of money was to be made, and they are there described as "Messrs. Bradley & Currier, by Messrs. Pritchard, Englefield, & Co., their solicitors," and are, in fact, the persons who would receive the money in the ordinary course. Solicitors, Pritchard, Englefield, & Co.; Woodfin & Wray.

COUNTY COURTS.

Bow.

(Before J. B. DASENT, Esq., Judge.)

March 3.-Harrington v. Westhorp.

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

negligence.

The plaintiff, a stevedore, sued the defendant, a master stevedore, for £200, compensation for bodily injuries received whilst in his employ in consequence of the negligence of the defendant's workmen. Glyn appeared for the plaintiff.

Ruegg appeared for the defendant.

The plaintiff, in his particulars of demand, delivered in pursuance of the County Court Rules, 1880 (ord. 39b., r. 3), relied upon the negligence of two of the defendant's workmen, named Johnson and Stacey. The facts were as follows:

The plaintiff was employed on December 16, 1881, with a gang of stevedores loading the s.s. Gleniffer. At about six p.m., the gang being at that time stowing the cargo in the 'tween decks under the superintendence of the foremau Johnson, the plaintiff was ordered by Johnson to fetch some dunnage wood. To carry out this order it was necessary to go up through the hatchway by a ladder and on to the deck. Whilst plaintiff was ascending the ladder a bale of goods weighing five hundredweight, which was being lowered into the hold by a steam crane, struck him, and occasioned the injuries in respect of which he sued.

Among the duties of Stacey, who was in command of the hatchway, was to give warning of the lowering of goods by calling out, "Stand from under." It was admitted that Stacey on this occasion did so, but there was conflicting evidence upon the point as to whether he waited a sufficient time atter calling out before allowing the goods to be lowered.

It was admitted that Stacey's usual duties were those of manual labour, and it was submitted on behalf of the defendant that, even assuming Stacey's conduct to have been negligent, the employer could not be held responsible under the Act. It was also submitted that the order given by Johnson was one which was quite capable of being executed safely, and, therefore, could not be said to be a negligent order, so as to make the employer responsible.

The JUDGE directed the jury that the objection taken as to Stacey was a good one, and left to the jury the question as to whether Johnson had been guilty of any negligence, either of commission or of omission. The jury found a verdict for the defendant. Solicitor for the plaintiff, Ward.

Solicitors for the defendant, Watson, Sons, & Romo.

SOCIETIES.

MANCHESTER INCORPORATED LAW ASSOCIATION. The annual general meeting of the members of this association was held on Friday, the 20th of January, at their rooms, Cross-street Chambers, Crossstreet, when an account of the receipts and disbursements (previously audited by two of the members) was submitted and passed, and the officers and committee were elected for the ensuing year.

which was unanimously adopted. The proceedings of this society for the last year were stated in the report,

The following are extracts from the report:

The committee congratulate the members upon the continued prosperity of the society, and a further increase in the number of its members.

The Customs and Inland Revenne Act, 1881.-On an inquiry being made by the Bolton Incorporated Law Society as to the mode of dealing with cases under section 33-viz., applications for probate where the gross value is under £300, a sub-committee was appointed to make further inquiries and consider the subject. A copy of the report made by this sub-committee will be found in Appendix A. to this report.

The following is the report:

"We have inquired into the working, in Manchester and surrounding towns, of section 33 of the Inland Revenue Act, 1881. We find that no Inland Revenue officer has been appointed to undertake probate work, so far as regards Manchester, nor is it intended to appoint one, inasmuch as Manchester is a registry town. The papers prior to obtaining probate are not prepared, in the surrounding towns, by the Inland Revenue officer there, but are prepared in the district registry from the notice delivered to the Inland Revenue officer. The fee of 153. and 30s. stamp duty when payable cover all expenses of every kind, including engrossing probate Papers will, pursuant to instructions from the principal registry, be received at the district registry from the solicitor (whether practising in

« PreviousContinue »