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The next clause is one which deserves careful attention. It provides that “ a bill of sale shall be void unless the same is
REVIEWS. executed in the presence of a person who has authority to take oaths in the Supreme Court of Judicature in England, and,
ROMAN DUTCH LAW. if the bill is executed in England, who is also a certifi
SIMON VAN LEEUWEN'S COMMENTARIES on Roman Dutch Law Revised cated solicitor, and such person shall state in the attesta
and edited, with Notes, by O. W. DECKER, Advocate. Translated from tion of the execution of the bill of sale that he has be the original Dutch by J. G. Kotzé, Barrister-at-law, Chief Justice of fore the execution of the bill of sale carefully explained the Transvaal. Vol. 1. Stevens & Haynes. to the grantor the nature and effect of the bill of sale, and The Roman Dutch law, it may perhaps be necessary to explain to further, if the bill is to be executed in England, that he was some of our readers, is the common law of our colonies of Ceylon, appointed by the grantor to be, and is, the solicitor of the Guiana, and South Africa. In Ceylon Van Leeuwen's work has grantor.” The effect of this will obviously be to introduce con- long been the text-book, a translation into English having been siderable difficulty in the execution of bills of sale in country published with special reference to the wants of that colony. In districts. The commissioner for oaths will have to be hunted up,
South Africa, and, as Mr. Kotzé tells us, especially in the Transvaal, the
Commentaries of Van Leeuwen is one of the works prescribed for the and if he is away or engaged, the execution must be postponed.
guidance of the courts. Mr. Kotzé has for the first time translated into Take, for instance (opering the Law List at random) the import
English the Notes to the Commentaries by Decker. We cannot ant town of Accrington, in Lancashire. There are stated to be only pretend to judge of the trapslation from the original Dutch, but we can two commissioners for oaths there; is it at all unlikely that testify to the terseness of the language in which the English version is both may be away on many days? If the clause should be expressed. Here and there it would appear that Van Leeuwen has not passed as at present drawn, the number of commissioners must very clearly expressed his meaning. We think that most readers of the be largely increased, and then where will be the guarantee, sup
commencement of his dissertation" of the different kinds of wills and
codicils" will agree with Decker that the section is “very unintelligible." posed to be afforded by the provision, of a certain extra trust
The translator has added useful notes of his own relating to decisions worthiness in the attesting witness? The provision as to the
of the Privy Council and the South African courts, and other authorities, attesting witness being appointed the solicitor of the grantor will The book bears marks throughout of great care, and will unquestionably increase the cost of the transaction, for the solicitor will appa- take its place as the standard English work on Roman Dutch law. rently have to obtain a formal appointment by the grantor. If he is formally appointed the grantor's solicitor, he will be respon
FIXTURES. sible to him for the propriety of the provisions of the deed, hence he will have to peruse and approve of it in the usual |THE LAW OF FIXTURES IN THE PRINCIPAL RELATION OF LANDLORD AND way.
TENANT, AND IN ALL THE OTHER OR GENERAL Relations. By
ARCHIBALD BROWN, Barrister-at-Law. FOURTI Edition. Stevens & Clause 9 establishes a system of local registration of bills of
Haynes. sale with the registrars of the county courts, which will, we think,
We have delayed too long our notice of this new edition of Mr. be a considerable improvement.
Brown's useful work. The main changes consist in the statement of the The next clause provides that every bill of sale made or given
provisions of the Bills of Sale Act, 1878, with reference to fixtures ; and in consideration of any sum under £50 shall be void. The
of the recent decisiors as to the effect of disclaimer by a trustee in bankevidence before the committee showed the enormous prevalence of ruptcy upon the right to the fixtures. Mr. Brown states very well and bills of sale for amounts under £20, and no question can arise as fully the cases on this subject, but refrains from commenting upon them. to their evil effect; but we are not clear as to the expediency | A new chapter has been added on the law as to ecclesiastical fixtures, or, of the remedy proposed. It is a question whether the effect will rather, on the law of dilapidations as bearing on the subject of fixtures.
May we be allowed to suggest that the pleasure of the reader would be not be to encourage in many cases the advance of sums just
increased if Mr. Brown would adopt a somewhat simpler style of phraseover the statutory amount at increased rates of interest.
ology. For instance, in the first paragraph of his new chapter, it Clause 11 strikes at the root of most of the evils which have does not conduce to the edification of the reader to be told of “any arisen from the new law by providing that
structure which, as being either of a strictly agricultural or of a barely “Where a person, within twelve months after he has executed a bill of sale. necessary and completory character, has coalesced with ... the becomes subject to the provisions of the law for the time beiog in force
house." relatiog to bankruptcy or any similar proceeding, whether he is adjudged
bankrupt or has his affairs liquidated by arrangement, or enters into a composition or otherwise, such bill of sale shall, as against the trustee or other person entitled to the estate of such person under the said law, be void in
CORRESPONDENCE. respect of any personal chattels whicb, at or after the commencement of the bankruptcy or liquidation or other date at or to which the proceedings under
THE CONVEYANCING ACT, 1881. the said law are deemed to commence or to relate, are in the possession or apparent possession, or the order and disposition, of the person executing
[To the Editor of the Solicitors' Journal.] such bill of sale.”
Sir,-I am one of those who, on first reading your remarks upon the There can be no doubt that it is the security given to the registered Conveyancing Act, were disposed to think that you were not treating it holder by the provision of the Act of 1878 taking chattels
loquite fairly ; but a little experience of its working has convinced me
that you have really rendered a valuable service in pointing out that it comprised in a registered bill of sale out of the order and
is unsafe to rely on its provisions as superseding the established forms. disposition clause of the Bankruptcy Act, which has mainly The provision (section 3) that the production of the receipt for the attracted the attention of the money-lenders to bills of sale. last payment of rent shall be evidence of the observance of all covenants
is qualified by the words “unless the contrary appears," and seems thus to leave it open to a purchaser to give evidence of a house being
out of repair in resistance to a claim for specific performanee. On the report of the Conveyancing Bill in the House of Lords, Lord Cole.
| The provisions (sections 3, 13) exempting a lessor or vendor of leaseridge drew attention to the clause of the Bill wbich proposed to abolish the
| holds from producing his title only apply to the cases noticed by you, office and all the machinery for taking the acknowledgments of married and leave it incumbent on the contracting party to prove that he comes women. He should submit to their lordships that the abolition of this office within one of them, and that he is not granting a lease under a power in was unwise and inexpedient. The whole scheme and the functions of the com. / a settlement, or dealing with a lease so granted. missioners was regulated by Act of Parliament, and, so far as he knew, The The general words (section 6) are defective in the matter of casements law in many cases operated for the protection of persons who ought to have as pointed out by you. a certain protection thrown over them. The scheme was very inexpensive, The covenant for quiet enjoyment in a mortgage (section 7) is curi. and he believed that the judicial bench was in favour of the retention of the
the ously worded so as to suggest an implication against the mortgagee present system. He submitted that it was hardly worth while under the circum.
taking possession when no interest is in arrear; and the covenant for stances to abolish this office. Earl Cairns said that for many years there had been a great feeling that the system of the acknowledgment of the deeds of
further assurance at the cost of the mortgagor is limited so as to determarried women was entirely useless and very expensive. He did not speak of
mine when the mortgagee contracts to sell the property. Consequently, the fees paid to the commissioners, but in order to take an acknowledgment
any act of further assurance that may be required to complete the title complicated machinery had to be set to work and solicitors employed, and, as | to a purchaser can only be obtained on paying the cost of it. a consequence, great expense was occasioned. He regarded the present. The provisions respecting inortgages of leaseholds take no account of system of taking acknowledgments as one wbicb, caused great expense and was the last day of the term, which is always left in the mortgagor. productive of no advantage whatever,
The provision (section 21) relating to the surplus proceeds of sale of
mortgaged property directs it to be paid to the person entitled to the mortgaged property, or authorized to give receipts for the proceeds of
CASES OF THE WEEK. sale thereof; which defines no one at all, unless it be the purchaser of the property, which is absurd.
RESCISSION OF CONTRACT FOR SALE-MISREPRESENTATION, INQUIRIES MADE The section (31) relating to the appointment of new trustees omits to
new trustees omits to BY PURCHASER-ONUS PROBANDI THAT REPRESENTATIONS OF VENDOR WERE NOT clear away the doubt whether a person named trustee in a will, who RELIED ON-PLEADING-SOLICITOR MADE PARTY FOR Costs. - In a case of disclaims, is a trustee within the meaning of the clause; or rather the Mathias v. Yells, before the Court of Appeal (JESSEL, M.R., Sir JAMES words of the section enhance the doubt which formerly existed.
HANNEN, and LINDLEY, L.J.), on the 13th inst., the action being to set aside a The Act professes (section 65) to allow a long term to be enlarged sale of a sum of consols, which had been invested to provide for the costs which into a fee, when there was originally no pecuniary rent reserved, or a might arise in a pending suit in the Chancery Division, on the ground that mis. rent was reserved, but “has become barred by lapse of time", while representations had been made by the principal defendant, the court reiterated the law is that rent can never become barred by lapse of time.
what was laid down in the recent case of Redgrave v. Hurit (ante, p. 74)The section (61) inserting a joint-account clause into every mortgage
viz., that when a vendor has made material representations as to the value of authorizes the mortgagor to pay the money to the surviving mortgagee,
the property sold, and the purchaser seeks to set aside the sale on the ground although he has notice of a severance of the jointure ; thus discharging
| that the representations were untrue, the onus is, not on the purchaser to
prove that he relied on the representations, but on the vendor to prove that A debtor by payment to one whom he knows not to be his proper he did not. JESSEL. M.R., referred to the recent case of Brownlie v. Campbell creditor.
(L. R. 5 App. Cas. 925) as laying down the law on the subject. If a material What with negativing this clause, and the clauses relating to con- representation was one which, from its nature, might induce the purchaser to solidation and leasing, and curing the other flaws abo ve pointed out, a | act upon it, then there was an inference that he did act upon it, and, if it mortgage under the new Act must run to nearly as great a length as was untrue, the defendant was liable, unless he could prove that the plaintiff under the old law, and be less satisfactory, since its operation is less did not in fact rely on it, or that he had in effect said that he did not care certainly known.
PRUDENS. about the representation, but would take the risk. The vendor could not say
to the purchaser, You might have inquired, and, if you had, you would have [To avoid misapprehension it may be well to add that our correspondent
found out that what I said was untrue ; nor could he say, You made some is an entirely independent witness.-ED. S.J.]
inquiries, if you had been more diligent you would have discovered everything. The question was whether the defendant had niade a representation kuowing it
to be untrue, or whether he had taken on himself to make a statement withTHE MARRIED WOMEN'S PROPERTY BILL.
out inquiring Whether it was true or false, though he had the means of satisfy
ing himself whether it was true or false. And, during the argument, Jessel, [To the Editor of the Solicitors' Journal.]
M.R., said that in an action of his kind it was not necessary for the Sir,-The fact that this Bill was read a second time in the House of plaintiff 10 allege in his pleading that be relied on the truth of a material Lords on Tuesday suggests that no time should be lost in calling atten- statement, the presumption being that, if it was material, he did rely tion to one anomaly in this most anomalous branch of law which is but
The solicitor to the principal defendant was also made a defendant to the imperfectly remedied by the proposed enactment.
action, but he had not made any representation to the plaintiff, and had not As your readers are aware, section 6 of the Act of 1870 provides that
even prepared the conditions of sale. He way, as JESSEL, M.R., said, made a personal property to which a woman, married after the passing of the Act,
defendant to the action only because he had acted as solicitor to the principal during her marriage, become entitled as next of kin of an intestate defendant, with the view of making him liable for costs. And, as had been shall belong to her for her separate use, while the next section provides that, said many years ago by Lord Cottenham, and more recently by Lord Selborne, in case of real estate descending upon her as heiress of an intestate, she it was improper to make a solicitor a defendant to an actiou for such a purshall bare the rents and profits only for her separate use, although pose, and tbe practice ought to be discouraged. The action had been rightly from the marginal note it is evident that the draftsman intended the dismissed as agaiost the solicitor, with costs.-SOLICITORS, Mason 4 Edwards ; absolute interest to belong to her.
T, Hay; Broʻks, Jenkins, f: Co. The effect of this anomaly has just been exemplified in my own practice.
COMPOSITION RESOLUTIONS_REGISTRATION-EXAMINATION OF DEBTOR AT A lady client, married in 1875, inherited last year real property of MEETINGS-PRESENCE OF SHORTHAND WRITER-STATEMENT OF AFFAIRS -considerable value. She has four infant children, one a son. On her SUFFICIENCY-IRREGULARITY IN PROCEEDINGS-LEAVE TO SUMMON FRESH death this child will, of course, in the absence of express provision, suo FIRST MEETING-BANKRUPTCY Act, 1869, 8. 126-BANKRUPTCY RULES, ceed to the entire property to the exclusion of the other three. My 1870, R. 295,- In a case of Ex parte Solomon, before the Court of Appeal on client wishes to prevent this by her will, but, of course, she is utterly | the 9th iost., the question arose whether a creditor, who desires to examine his powerless to do so, and her husband, if he survived her, would be equally debtor at a meeting under a liquidation petition filed by the debtor, is 50. The only way in which her obiect can be effected is by resorting to entitled to have a shorthand writer present at the meeting to take down the the cumbrous and costly procedure of the Fines and Recoveries Act and
debtor's answers, and whether, if the meeting refuses to allow this, the conveying the property to trustees, to be held upon such trusts as she
resolutions passed are of any validity as against dissenting creditors. A shall by will appoint. Had the property been leasehold there would, of
debtor having filed a liquidation petition, one of his creditors instructed his
solicitor to attend the meetings under the petition as his proxy. The course, have been no impediment in the way of free testamentary dis.
solicitor desired to examine the debtor about his affairs, and he attended the position,
first meeting, taking with him a clerk who could write shorthand, for the The Lord Chancellor deals with this anomaly by providing in purpose of making notes of the debtor's answer?. At the meeting the section 3 of his Bill that every woman married before the com solicitor commenced examining the debtor, and the clerk made notes of his mencement of the Act shall be entitled to hold as her separate answers. Some one called the attention of the chairman to the fact that a property all real and personal property, her title to wbich reporter was present, and the chairman then asked the clerk whether he was shall accrue after the commencement of the Act, which is fixed to take a creditor or a proxy for a creditor. The clerk replied that he was not, and place on the 1st of January, 1882. But why, if the provision be a proper
the solicitor then explained that he was there by his instructions to take one, and if its effect is to be retrospective at all, should that retrospective
notes of the debtor's examination. The chairman said that this was an iroperation be limited to a few weeks, and thus the beneficial effect of the
regular proceeding, and put it to the meeting whether they desired that the Act be denied to hundreds whoso position is similar to that of my client ?
clerk should remain or not. The meeting, by a large majority, resolved that March 9.
the clerk should withdraw, and he then left the room. The solicitor conA SOLICITOR.
tinued his examination, but no notes of the debtor's answers were taken by anyone. The creditors resolved by the statutory majority to accept a
28. 6d. in the pound, the solicitor, as proxy for his client,
dissenting. At the second meeting the solicitor again attended. He wished An American telegram states that the President has nominated Mr. Samuel to examine the debtor again, and took with him a professional shorthand Blatchford, judge of the Circuit Court, New York, as justice of the Supreme writer to make notes of the debtor's answers, but the meeting excluded the Court, to fill the place which Mr. Conkling recently declined.
shorthand writer in the same way as they had excluded the olerk at the first Mr. Cbamberlain announced in the House of Commons, on Thursday meeting, and the solicitor declined to ask the debtor any more questions. The erepjog last, that the Government Bankruptcy Bill would not be introduced
resolutions passed at the first meeting were confirmed, the solicitor, as proxy for before Easter.
his client, again dissentiog. The registration of the resolutions was opposed The office of clerk oi the peace for the East Riding of Yorkebire has been
by the dissentient creditor, on the ground (inter alia) that he and his proxy accepted by Mr. Bickerstetb, barrister, with the condition that Mr. Joseph
were at both the meetings prevented from baving a proper examination of the Wilkinson, town clerk of York, is to hold the position of depoty-clerk.
debtor and from having such examination taken down in writing. Mr.
Registrar Pepys overruled the objections, and ordered the reselutions to be Up to Monday, says the Times, 103 Bills have been introduced into the registered. The Court of Appeal (JESSEL, M.R., and Cotton and LINDLEY, House of Commons since the commencement of the present session. Of that L.JJ.) held that the resolutions ought not to have been registered, and number fifteen are Government measures and the remainder are promoted by ordered the registration to be vacated. It was orged that no request had paivate members. Only two Bills bave yet gone through all their stages and been made to the chuirman to take notes of the examination, and that it was received the Royal assent; eighty are ready for second reading; two bave | his duty to take notes if requested to do so ; that the meeting was a meeting passed the House of Commons ; one originated in the Upper House; ten of creditors, and that no one but a creditor, or his proxy, bad a right to be have reached the Committee stage, and three have been referred to the present, and that, if every creditor who wisbed to examine a debtor was Examiners,
entitled to bring a shorthand writer to take notes, great inconvenience would
arise. JESSIL, M.R., said that, though the Act was silent as to who might treat for two strips of land on either side of the line, upon which they pro. he present at the meetings, it lad always been the practice to allow the posed to make a roadway from and to Davy's land, rassing under the accom. debtor's solicitor to le present to protect him, and this was a rational pracice. modation archway. These strips of land were comprised in the lands shown His lordship believed that it was also usual, when an accountant bad been on the company's deposited plans. The action was brought to restrain the employed by the debtor, to allow bim or his clerk to be present. company from taking the plaintiff's land for this purpose, on the ground that How was it possible for justice to be done if no record upon they were not taking the land for the purposes of their undertaking, which the registrar could act was kept of the debtor's evidence given at the but in order to save themselves the expense of making the obvious and more meeting? Was it rational not to allow an examining creditor to have a short. convenient communication by a second archway directly between the severed hand writer present to take notes of what the debtor said ? His lordship porrions of Davy's land. Kay, J., granted an injunction, but his decision wis thought that it was wholly irrational. It was no part of the chairman's duty reversed by the Court of Appeal (JESSEL, M. R., and COTTON and LINUL Y, to take notes. It was said that every creditor migbt want to have a short. L.JJ.). JESSEL, M. R., said that the real question was whether taking the band writer. That was not very likely, for the employment of a shorthand plaintiff's land for the purpose of making these accommodation works for writer was a very expensive matter. But, supposing that twenty creditors Davy was taking it for the purposes of the company's undertaking, and, if had brought twenty shorthand writers, it would be reasonable for the meeting there had been no decisions on the point, his lordship, on the words of the to say that only two should be allowed to be present. That was an answer to Act, should bave come to the conclusion that the taking of land by a railway this suggestion. The proceedings in the present case had been wholly irregular, company for the purpose of constructing works which they were liable to and on this grouod alone the registration of the resolutions should have been make, or which they were empowered to make, was a taking of it for the disallowed. COTTON, L.J., said that by section 126 great power was given to purposes of their undertaking. In section 16 of the Railways Clanses Act no the majoriiy of the creditors, but they must be strictly watehed in the exercise distinction was made between the railway iteelf and accommodation works, of it, and they must strictly follow the directions of the Act. One of those and by section 68 the company were compelled to make certain works " for directions was that the debtor should be present at the meetings, and should the accommodation of the owners and occupiers of land adjoining the railway answer any inquiries made of him. He must also produce a statement of his inter alia), such and so many convenient gates, bridges, arches, culverts, and nesets and debts, and in Ex parte Aaronson (26 W. R. 470, L. R. 7 Ch. D. passages over, under, or by the sides of, or leading to or from, the railway as 713) it was decided that his answers to questions put to him at the meetings shall be necessary for the purpos; of making good any interruption caused by would go before the registrar as part of his statement of affairs. The directions the railway to the use of the lands through which the railway shall be made." of the Act, as explained by that decision, implied that some pote in writing If the company could make good such interruptions in two or three ways, must be made of the examination, and in questions of figures it was of the who was to decide which method should be adopted ? Clearly the company, utmost importance to the examining creditor that he should have a written note actiog upon the advice of their engineer; and if the method proposed should to refer to. In his lordship's opinion, the exclusion of the shortband writers in not be convenient to the landowner, power was given to him by section 69 to this case was entirely wrong. It was urged that the meeting was to be a apply to two justices. But, provided the method was convenient to the meeting of creditors. But the Act nowbere said that no one else was to be landowner, it appeared clear that the company had the power of determining present, if his presence was essential for reasonably conducting the proceedinge, which method should be adopted. In the present case the landowner for And, in his lordship's opinion, it was essential-not, indeed, that every whose benefit the proposed accommodation works were to be made did not creditor should have a shorthand writer present, but that there should be some object, but the landowner whose land was to be taken objected. The company reasonable means of making à record in writing of the debtor's answers. said that, if the communication was made in the way suggested by the plaintiff, LINDLEY, L.J., thought the proceedings at both the meetings had been so it would be highly inconvenient, as, in order to make this second arcb war, conducted as not to be fair to the dissentient creditors. There was no real they must either raise their embankment or lower the road so as to expose it to opportunity of examining the debtor, and the conduct of the majority, in ex- the risk of being flooded. In the one case there would be serious inconvenience cluding that assistance of which the examining creditor stood in need, was to the company, in the other to the landowner. How could it be said that the unreasonable.
land proposed to be taken was not required for the purposes of the undertaking ? Another objection to the registration which the court held to be fatal arose lodependently of any decisions, his lordship was of opinion that the company in this way. The debtor was a solicitor, and had carried on business in part. had power to take the land. But the case of The Stockton and Darlington nership, but the partnership bad been dissolved just before the filing of the Railway Company v. Brown (9 H. L. C. 246), showed that, when it was once petition, and the business was thenceforth carried on by the other partner proved that the purpose for which land was required was a purpose of the alone, who was to receive the assets and to pay the debts of the firm. In his undertaking, the company, if they were acting bona fide, bad power to take statement of affairs the debtor, in the list of book-debts due to his late firm, the land. Whatever a company was empowered to do was a purpose of their bad made the following entry and nothing more:-“ The book-debts of my undertaking, and by section 68 the company was compelled to make good the late firm, as far as I have the means of ascertaining, the greater part being interruption caused by the severance of a landowner's land. The case of Earl actions and suits which are pending, and otber matters in progress, which I Beauchamp v. The Great Western Railway Company (16 W. R. 1155, L, R. 3 estimate to realize about £9,500. The costs outstanding, forming the above, Ch. 745), was a distinct authority for the present case. There it was said by in most cases are neither made out nor taxed.” JESSEL, M..., said that to the plaintiff that some land, which the defendants had taken from him, had call this a statement was simply ludicrous ; the debtor by it pledged himself to become superfluous land, and that they were bound to re-convey it to him. The nothing. He ought to have given the names of the debtors, and, where the defendants said that the land was not superfluous, because they wanted to bills of costs had been made out, he should bave stated the amounts, and, in use it to construct accommodation works for another landowner. And the otber cases, he should have given an estimate. He should have applied to his case was decided against the plaintiff on the ground that the company could lale partner for the necessary information. If, however, for any reason, it was have taken bis land in the first instance for the purpose of making the accomimpossible for him to make a sufficient statement, the only result would be modation works, and that, therefore, having originally taken it for the purpose that he could not have a liquidation by arrangement or a composition, but of making the embankment of their railway on it (which they had afterwards must be made a bankrupt.
altered), they were entitled to keep the land for the purpose of the accommo. The question then arose whether the court would allow the debtor to dation works. His lordship was of opinion that the company were entitled summon a fresh first meeting of bis creditors. And it was urged on behalf of to take land for the purposes of any works wbich they were empowered to the dissentient creditors that the court would only allow this to be done in a make, but in the present case it was sufficient to say that they could take case where there bad been a slip in the proceedings, and that here the majority land for the purpose of making works which they could be compelled to make. had deliberately gone wrong. JESSEL, M.R., thought there bad been nothing Cotton, L.J., said that the question was simply whether the land was bond more than an irregularity. He could see no evidence of mala fidcs. The offer fide required for the purposes of the company's undertaking. It was not of a composition of 2s. 68. might be a fair one, but at present the court had no 'necessary to show that the company could be compelled to make the works ; means of judging whether it was so or not. By reason of an irregularity the it was enough to show that the land was reasonably required for the purpose resolutions could not be registered. But, seeing tbat the great majority of the of works which the company had power to make. The landowner whose creditors desired to have a composition, why should the debtor be driven into land had been severed was not to be considered unless he was objecting to the bankruptcy? Of course, if the debtor had been guilty of gross misconduct, mode in which the company proposed to restore the communication. The the court would not give him a new chance of escaping bankruptcy. But, word “necessary" in section 68 meant necessary in the sense of restoring the considering the wishes of the majority of the creditors, and that the debtor had communication in a convenient way, and it was left to the company's engineer not been guilty of any misconduct, he ought to be allowed to summon a fresh to say what was a convenient way. Of course, if it was clear that the land first meeting of his creditors. The court, accordingly, ordered that a fresh first which it was proposed to take could not be reasonably required for the pur. meeting should be summoned, and gave leave to use at it the proofs and pose, the court would come to the conclusion that the engineer was not acting proxies which were already on the file. They also said that, if a composition bona fide. The decision in Pugh v. The Golden Valley Railway Company (28 was resolved upon, the costs would be paid by the debtor; otherwise, they | W. R. 44, 863, L. R. 12 Cb. D. 274, 15 Ch. D. 330), was quite consistent with would be paid out of his estate.-SOLICITORS, A. S. Jonas ; Dubois & Reid. this view. LINDLEY, L.J., said that the plaintiff's argument was that it was
not necessary to take bis laod, because the communication for Davy might be
made in another way. This was a suicidal argument, for, if there were sis RAILWAY COMPANY_COMPULSORY PoweRS TO PURCHASE LAND-AC. ways in which an accommodation work could be constructed, it might COMMODATION WORKS, RAILWAYS CLAUSES Act, 1845, ss. 16, 68.-In a equally be said that each of them was not a necessary way. The only praccase of Wilkinson v. The Hull and Barnsley Railway Company, before the Court tical method was to allow a discretion to the company's engineer to decide in of Appeal on the 10th iost., the question arose whether a railway company Fhich way the work should be constructed, and all the authorities were in could use their compulsory powers of taking land for the purpose of taking favour of this view. Earl Beauchamp v. The Great Western Railway Comland from one landowner in order to construct accommodation works for pany was exactly in point.-SOLICITORS, Brooksbank f. Galland; Frankish & another landowner. The railway of the defendant company was carried | Buchanan. by an embankment over and intersected land of the plaintiff, and also of one Davy, the owner of adjoining land. It was proposed by the company to provide access between the severed portions of the plaintiff's land by an arch. I PRACTICE -ADDING PARTIES FOR DISCOVERY-SOLICITOR-JUDICATURE way under the embankment which abutted upon his land; and in order to Act, 1873, s. 24, SUB-SECTION 3-ORD. 16, R. 13.-In a case of Berry v. give Davy the benefit of this communication, without making a second Keen, before the Court of Appeal on the 15th inst., a question arose as to accon modation archway, the company had served the plaintiff with notice to adding a party to an action merely for the purpose of obtaining discovery from
him. The action was brought by persons who, under the will of a trstalor, in the case of a company. No doubt the old cbancery practice bad been were entitled to real estate to recover possession of it from the defendants, materially altered in this respect, that now the statement of defence and who were in possession without any title. The defendants alleged that the the interrogatories were different documents. It would be a great abuse legal estate was vested in some persons to whom the testator bad conveyed it to compel a man to admit on oath that whiob he had already adınitted by by way of inortgage. The plaintiffs interrogated the defendants, and asked his pleading, and for this reason tbe common law divisions had deolined to them the names of the mortgagees. The defendants answered that they did allow interrogatories to be administered to a defendant until after he had not know the names of the mortgagees, but that their solicitors knew their delivered his defepoe. Bat, subject to this, the old practice of the Court of Dames. The solicitors had acted for the testator in the preparation of the Chancery remained. A plaintiff was still entitled to discovery from the mortgages. The plaintiffs then took out a summons asking that they might be defendant, not only of facts within the defendant's kpowledge, but to at liberty to add the solicitors as defendants to the action, and to interrogate discovery in the wider sense of admissions of right. And in this case bis them as to the names of the mortgageer, the object being then to make the lordship could see nothing oppressive or vexations in asking the defendant mortgagees defendants. Hall, V.C., refused the application, and his decision
whether he would admit on oath the existence of tbe alleged highway.was affirmed by the Court of Appeal (JESSEL, M.R., and Cotton, and LINDLEY, SOLICITORS, Taylor, Hoare, f Taylor; F. Needham. L.JJ.). Reliance was placed on section 24 (sub-section 3) of the Judicature Act, 1873, and on rule 13 of order 16, and also on the case of Banner v. Jack. son (1 D. & Sm. 472), wbich, it was said, showed that before the Judicature Rules Of London Stock ExCHANGE-APPOINTMENT or Settling Day Act the solicitors could have been made defendants for the purpose of dis. IN SHARES or New COMPANY – FRAUD — Rights OF JOBBERS - DEcorery. JESSEL, M.R., said that a mere witness could not be made a party FAULTING MEMBER-ADMINISTRATION OF ASSETS BY OFFICIAL ASSIGNEE OF to an action, however essential the discorery which he could give might be to Stock ExcuANGE-RIGHTS OF CREDITORS-DEBTOR'S SOMMONS-SECURITY the plaintiff. In Banner y. Jackson the solicitor of the other defendant was - BANKRUPTCY Act, 1869, 8. 7-COPIES OF SHORTHAND WRITER'S properly made a defendant, because he had possession of certain documents Notes OF EVIDENCE-Costs.-In a case of Ex parte Ward, before the Court wbich ihe other defendant c'aimed, and of wbich the plaintiff scught the of Appeal on the 9th inst., some questions arose as to the construction of some delivery up. Cotton, L.J., said that in that case the solicitor had made of the rules of the London Sto: k Exchange. By the custom of the Stock Ex. himself an active party in the litigation. LINDLEY, L.J., said that the present change all members are liable as principals upon the contracts into which they applicatiou was, perbaps, an experiment worth trying, but it could not suc enter, even though they are, in fact, acting only as brokers for a p incipal. Ong ceed.-SOLICITORS, G. E. Carpenter; Brooke f Chapman.
rule provides that all contracts entered into with respect to the shares of a new company are contingent on the appointment of a special settling day by
the committee. Another provision of the rules is that, when a member is PRACTICE - DISCOVERY-INTERROGATORIES-ADMISSIONS-ORD. 31, R. 2.
declared a defaulter on the Stock Exchange, all his outstanding contracts are In a case of The Attorney-General v. Gaskill, before the Court of Appeal on at once closed by the official assignee appointed under the rules, who receives the Sth inst., the question was raised whether, under the present practice, in
all differences which are payable on that footing in respect of the winning terrogatories can be delivered by a plaintiff merely for the purpose of obtaining
contracts, and pays all differences wbich are due on the same footing in respect from the defendant an admission of right, or whether they ought to be re
of the losing contracts. In Ex parte Ward a broker was commissioned by atricted to the obtaining from the defendant information as to facts which are within his knowledge, and are not within the knowledge of the plaintiff.
a client to buy for him some shares in a new company. The broker accordingly The
bought the shares from a jobber at a time when no settling day for ihe action was brought by the Attorney-General, at the relation of a local board,
company's sbares had been appointed. Both the jobber and the broker were to restrain the defendant from building (as it was alleged he was doing) so as
members of the Stock Exchange. A settling day was afterwards appointed to obstruct a footway which the plaintiffs alleged to be a public highway. The
by the committee of the Stock Exchange. The application for a settliog day plaintiff delivered interrogatories for the examination of the defendant, and
was opposed, on the ground that there had been fraud in the getting up of asked him inter alia) whether the path in question was not a public highway,
the company, but the committee, after a long investigation, came to the conand wbether it had not been for many years so used by the public. The
The closion that the allegations of fraud had not been proved. The client failed to defendar t declined to answer this interrogatory, and Bacon, V.C., held that be
provide the funds necessary to pay for the shares, and the broker was unable was not bound to answer. It was urged on the defendant's behalf that the
to do so, and, consequently, he was declared a defaulter on the Stock Excbange, proper mode of making admissions is by the pleadings, wbich, under the
and bis contracts were closed by the official assignee in the ordinary way, but present practice, are not put in upon oath, and that the discovery to be very little (if anything) was obtained in this way for distribution among the obtained by means of interrogatories is now limited to facts which the party Stock Exchange creditore. The jobber afterwards, with the consent of the interrogated knows, and which the interrogating party does not know. And
And creditors of the broker (as required by another of the Stock Exchange rules), reliance was placed on the decision of Bacon, V.C., in Johns v. James (L. R. issued a debtor's summons against him for the amount due to bim on his contraets 13 Cb, D. 370), in which the Vice.Chancellor disallowed an interrogatory to buy the shares. The broker applied to the court to dismiss the sum nons, delivered by a defendant to a plaintiff, asking whether certain allegations in alleging that no debt was due from him, mainly on the ground (1) that the the statement of clain were true or false. His lordsbip said that such an appointment of the settling day had been obtained by fraud, and was, there. inquiry was like saying, “Have you not told a falsehood in your statement of fore, invalid: (2) that the jobber, having had the benefit of the distribution claim " and he thought that such an inquiry was not the province of inter- of assets by the Stock Exchange assignee, was precluded from taking any rogatories, and there was no reason why the plaintiff should be put to answer any
legal proceedings against the broker in respect of the same matter. Mr. such inquiry. JESSEL, M.R., said that the Vice-Chancellor appeared to have pro.
Registrar Pepys overruled the objections, but, as the jobber did not object ceeded on some misapprehension as to the effect of the Judicature Act. The
to the question of the validity of the debt being tried in an action, he ordered Judicature Act did not alter the old practice as to discovery, except so far as
the proceedings on the summons to be stayed, pending the trial of an action, the rules expressly altered it. His lordship must not be supposed to be
on the terms of the broker giving security for the amount claimed. The encouraging the practice of interrogating the defendant through all the state
broker appealed, and it was urged that no security ought to have been required. ments contained in the statement of claim, as was the practice in the Court The Court of Appeal (JESSEL, M.R., und Cotton and LINDLEY, LJJ.) of Chancery before the Judicature Act. But rule 2 of order 31 provided
affirmed the decision. Jessel, M.R., said that even if the settling day was a means of checking the delivery of unnecessary interrogatories, and his lord.
obtained by frand, that could not affect the rights of the jobber, unless it was ship boped that a more effectual mode of checking this would soon be given. |
shown that he was a party to the fraud, and of that there was not a particle of Here the defendant denied the existence of the alleged public right of way. The plaintif asked him whether he did not know that there was this highway,
evidence. Even if such an extravagant notion could be entertained as that the
committee were themselves parties to a fraud, that would not affect the rights and whether it bad not been used by the public. The interrogatory was
of the jobber, if he was not a party to it. Then it was said that when a man material. The objection to it was that it sought an admission on oath from
was declared a defaulter on the Stock Exchange, the official assignee closed the defendant of the whole matter in dispute. That was no objection at all. It
his accounts, and distributed what he received among the defaulter's creditors, was because the plaintiff had to prove his case that he sought to obtain an
and it was said that this had released the debt. Why it should, his lordship admission of bis right from the defendant. If the plaintiff could get the
could not conceive. There was no such provision in the rules. To the ex. admission, he would be relieved from the necessity of proving his case. To tent. indeed, to which the debt had been paid in this way, it would be disprove it would involve the calling of a great number of old witnesses, which charged, but no further. It was said tbat one of the rules provided that no would be a very expensive proceeding. One of the great objects of inter- | legal proceedings should be taken by a member against a defaulter without rogatories bad always been to save the expense of adducing evidence by the consent of his creditors. In this case, however, the creditors of the appelgetting admissions from the defendant, and not merely the discovery of lant had given their consent. But, if they had not, the rule did not destroy facts which would lead to evidence. COTTON, L.J., said that the argument the debt. So far as his lordship was concerned, he could not see why the was that the old practice of the Court of Chancery as to discovery before proceedings on the summons sbould have been stayed at all, even on the terms the Judicature Act must be thrown aside now. This was a mistake. The
n aside now. This was a mistake. The of security being given. But the respondent had consented to an order in Judicatore Act enabled every party to interrogate his adversary, subject to
a every party to interrogate his adversary, subject to that form. The law on this subject was quite settled by the two cases of Er
e right to discovery remained the same as it was parte Wood (4 D. M. & G. 875), and Ex parte Wier (20 W. R. 457, L, R. 7 before. A party had a right to ask for admissions from his adversary of Ich, 319). In the latter case, Lord Justice James said, “The registrar ought everything wbich was material to the isgoes raised on the pleadings. The to have had regard, not merely to Wier's solvency, but to the prospect of object of the pleadings was to ascertain the issaes between the parties; the Tucker's success in an action.” And Lord Justice Mellish said, "In deterobjeot of interrogatories was to obtain admissions on oath which would mining whether security should be given, the registrar ought not only t) conrelieve the interrogating party from the burden of proving bis case by sider the solvency of the alleged debtor, but also what is the probability evidence. But his lordebip would never encourage in any way the old that the claimant will be able to establish a debt. If the probability is practice of interrogating to every statement in the statement of claim that there is a good defence, security ought not to be required.". Applying whether it was material or not. That practice was checked by role 2 of that rule to the present case, it was, in his lordship's opinion, tolerably clear order 31, and would probably hereafter be more effectually checked. that the appellant would have no defence to an action by the respondent for LINDLEY, L.J., said that the Vice-Chancellor seemed to have forgotten the alleged debt, and, therefore, the registrar was quite right in requiring that the rule under the Common Law Procedure Act, tbat it was necessary security to be given. Cotron, L.J, and LINDLEY, L.J., both agreed that 10 obtain leave to deliver interrogatories, bad been now abolished except the fact that a settling day had been obtained by fraud would be wholly im. material unless it could be shown that the jobber was an actor in or a party to the fraud, and of that there was no evidence.
EQUITY AND LAW LIFE ASSURANCE SOCIETY. The court allowed the respondents the costs of copies of a shorthand
The anonal general meeting of she shareholders was held on Tuesday, at writer's notes of evidence taken before the registrar, on the ground tbat the respondents had been served by the appellant with notice that these notes would
the society's house, No. 18, Lincoln's-ino-fields, Mr. John M. Claboa pre
would siding. be read.-SOLICITORS, L. Rawlins ; Travers Smith, & Braithwaite.
The secretary (Mr. S. W. Berridge) read the notice convening the meeting
The report, which was taken as read, states that “Durinz the past yeur, TAXATION OF Costs-DelivERY OF BILL or Costs together with Cash the 37th in the history of the society, 227 new policies have been issuel, ACCOUNT-RETENTION OF COSTS AND PAYMENT or BALANCE - ATTORNEYS
assuring £389,991; and of this amount £331,791 has been retained by the AND SOLICITORS ACT (6 & 7 VICT. C. 73), 8. 41.- In the case of In re Angove,
society, and the remainder re-assured. The gross amount of the new premiams before Coitty, J., on the 10th inst., a motion was made by a solicitor to dis.
is £12,791 98. 11d., and the net amount, after deducting re-assurance premiums charge an order for taxation. It appeared that the applicant, during the
is £11,142 0s. 9d. The renewal premiums have amounted to £121,768 118 70., year 1879, and subsequently, had been engaged in transacting business for one and the amount of assurances, excludicg re-assurances, in force at the end of Scowed. On the 30th of May, 1881, the solicitor delivered to Scowen his the year was £4,340,169, the premiums on which amounted to £128,974 23, 71, bill of coste, amounting to £100 93. 7d., and on the day following a cash
The amount of interest and dividends received during the year wis account, which showed a balance of £1 18s. Id. to Scowen's credit alter de.
£59,738 14s. 1d., an amount rather smaller than that received in the previous duc'ing tbe bill of costs. On the 24th of November, 1881, Scowen called at the
year. This arises chiefly from the lowered rate of interest, and from our s licitor's office, requesting payment of the balance due to him, and received
baving had a large sum on deposit during the year. Three reversions have from the solicitor a cheque for £1 169. only. On the 23rd of February, 1882, | fallen into possession during the year, and one has been realized, which Scowen took out a common order for taxation of the bill of costs delivered to latter, with four allowed to be redeemed, bave yielded a profit in all of bim on the preceding 30th of May. The solicitor sought to discharge this £1,769 11s, 101. Two small balances, amounting to £226 178. 11d., have been order, on the ground that the receipt by Scowen of the balance was tantamount
written off. The claims have anounted to £99,805 93. 3d., which is some. ment of the hill CuTTY I said that it was impossible in the present what less than the expectation according to the tables by which the society's case, to say that the solioitor had discharged the demands of his client in full,
valuations are made. The amount of annuities paid during the year is because it was apparent that the sam of 25. 1d. was still unpaid. It must be
| £20,110 0s. 8d., wbilst the amount received for the purchase of new annuities held upon the facts that the client was entitled to the order asked for, since in
I is only £10,565 63. 110.; the amount in force bas decreased by £500 during point of law a payment of £1 168. was not a payment of £1 18s. 1d. His the year. The total receipts during the year bave amounted to £205,570 13. 93., lordship was also of opinion that if the solicitor had intended, by the payment
and the total payments to £151,650 10-., so that the society's assets have been actually made, to have finally settled all accounts between himself and his increased by £53,919 118. 90. They now amount to £1,72 + 603, and excluding client, he should bave drawn his client's attention to the matter at the time of the unproductive items, such as cash on current account and also the reverpayment, in order that an opportunity might be given to his client at once of sions, the r«mainder was invested on the 31st of December at an average taxing the bill of costs if he wished to do go. The motion must be refused,
rate of £4 108. 61. per cent. per annum. The directors who retire by with costs.-SOLICITORS, Angove; Emanuel f Simmonds.
rotation are the Hon. Mr. Justice Danman, Mr. Staveley Hill, Mr. Bristowe, and Mr. Horace Smith. Two of the auditors, Mr. Bailey and Mr. Pitcairn, also retire. All th-se gentlemen offer themselves for re-election.
The CHAIRMAN said Gentlemen, it is now my daty to move the adoption LANDLORD AND TENANT-DEMISE OF REALTY AND CHATTELS-DESTRUC- of the report, and I am glad to tell you, as you have already seen, that I TION BY FIRE-RENT.-In a case of Marshall v. Schofield, a case tried at the
have again a prosperity speech to make to you. On looking over what I last Liverpool Assizes and heard on furtber consideration by Chitty, J., on the bave said in past years, and what used to be said by our good friend, Mr. 14th iost., an important question arose as to the liability of certain lessees to Rossell, I find we are going over the same ground again and again, but while pay rent under the following circumstances :- The plaintiffs, the trustees of a
the figures are new, it must be interesting to all of us to koow what the will, agreed to demise to the defendant “room and power" in a mill at an
present actual state of the society is. I told you last year that we were wellannual rent of £700, the landlords supplying steam power. The defendant
to-do, because we bad in the previous year sufficient new business, tbat we entered under the agreement, occupied the premises for one year, and paid
made a careful selection of oar lives, and that we put out our money on good one year's rent. At the beginning of the second year the premises were
security. I thiok you will say, when I have finished my speech, that we burnt down. The agreement contained no clause providing for cesser of rent in
can make the same assurance again this year. My friend on my left (Mr. case of the destruction of the premises. The plaintiffs claimed the whole second
Berridge), to whom we are so much indebted for the prosperity of the society, year's rent, less certain deductions, relying on the rule of law that if realty
gives me some figures, and I shall read them to you, under varions heade, to Hod personalty are demised together the rent issues out of the realty only.
justify what I bave said. The first I have will be the amount insured during The defendant, on the other hand, contended that the rent being indivisible, and the law not allowing apportionment, no rent whatever was payable. The
the past year, which is £389,991. Daring the last five years the figures are
these: I will give you the thousands and omit the hundredg. In 1876 the landlord was unable to perform one side of the contract, and it was absurd to cootend that the tenant was, nevertheless, bound to perform the other side.
amount was £432,000; in 1877, £361,000 ; in 1878, £280,000; in 1879, If the rule of law was to bear the interpretation claimed by the plaintiffs, the
£413,000; and in 1880, £366,000. The average of these is £379, 160, so tbat result would be that the landlord would be benefited by the destruction of
you see we are more than the average for the last five years in the sun in. his property. Chitty, J., said that the rule of law was clear that rent issues
sored. If I take the premiams, I find the sam received for new premiums out of the thing demised and every part of it. There had been endeavours
daring the past year is £12,791. Then, taking the five years as before, in long since to relieve the tenant upon the destruction of the tenement from the
1876 we received £15,197 ; in 1877, £13,000; in 1878, £8,600 ; in 1879, vecessity of paying rent. But those endeavours had failed, and the established
£13,000; and in 1880, £12,000. The average of this is £12,650, and the new law was that the rent must be paid notwithstanding the disappearance of the
premiums of last year being £12,791. Again, we are beyond the average property. The present case did not fall within that class of cases where there
of the last five years. I may tell you here that the average amouot of was a contract with covenants to be performed by either party. The result our policies during the last year is £1718, and I need not tell
the was that he must hold that the plaintiffs were entitled to the rent claimed. you that the higher the amount, probability is the bigber however harsh the law might seem to be, and however unfortuorte the defend.
the class of the life, and the higher the class of life, the life is 80 anis --- who bad, probably, entered into the agreement in question without any
much the better. Therefore, when we have largo policies you are pretty sure legal assistance-migbt appear. It might be observed that it was usual in the
they are good lives. On the question of interest I shall have a little explanacase of properly drawn demises of land and effects—for instance, in the case of
tion to give, because those of you who have carefully analysed the account, a demise of a bouse and furniture-to re servetwo separate rents, and to insert
will find that althougb our capital fund has been more, the interest received a proviso of cesser of rent upon destruction by fire. His judgment must.
during the last year bas been rather less. The first reason for that is Therefore, be for the amount claimed.-SOLICITORS, Bower & Cotton, for Jubb
simply that we cannot get the interest we used to get. Where we used to get d Boo'h, Halifax ; H. Thompson, Liverpool.
5 per cent. we now get 4) per cent., and wbere we got 41 per cent. we now get 4. We are glad to get good first-class securities even at 4 per cent., although we generally get a little more. We had a large amount during a considera ble part of the year on deposit. We make investments from time to time as you see, but as we cannot get them to pay us more than £3 13s. per cent. you will
readily suppose we are not anxious to go largely into securities of tbat class when SOCIETIES.
we can get good mortgages to pay something like 41 per cent. Just now we have been waiting for a little time to get rid of a sum of £75,000 on good
mortgage. Happily, lately we have got good interest, but there are times when SOLICITORS' BENEVOLENT ASSOCIATION,
money is wanting for a good mortgage, and the rate of interest being low the The usual montbly meeting of the board of directors of this association amount received of course suffers. From time to time reversions come in ; they was held at the Law Institution, Chancery-lane, London, on Wednesday, pay a higher rate then anything els3-at least 6 per cent,-but they do not March 8, Mr. Philip Rickman, in the chair; the other directors present being count in our interest. If we put out £30,000 during the year, possibly what Messrs. Asker (Norwich), Brook, Hedger, Hunter, Kays, Mellersh (Godalming), we may get is £50,000 on reversions, but that does not count in the interest l'aterson, Pennington, Roscoe, Rose, Smith, Walters, and Woolbert (Mr. of the year. For these reasons, and in spite of all our care, the interest E ff., secretary). A sum of £305 was distributed in grants of assistance during the year does not come to quite so much as the interest of the ain ng the necesitous families of thirteen deceased solicitors ; five gentlemen preceding years. The claims again, though they seem of lorge amount, were admitted members of the association ; bequests of £100, in each case, are one of our favourable items. They are just under $100,000, but they Announced under the wills of the late Henry Spence Fairfoot, Esq., and might have been, according to the calculations, £107,000; therefore we are Charles Richard Craddock, Esq., solicitors; and other general business trans under the mark, and that is another instance of the carefal way in which we Icked.
select our lives. Another item I sbould like to remark opon is that the