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LONDON, NOVEMBER 19, 1881.
adjourned, the panel having been exhausted, and only nine jurors CURRENT TOPICS.
having been obtained. It is curious that objections on this ground have so seldom occurred in England. At the trial of O'Coigly
and others for treason, one of the panel, who on looking on the THERE ARE UNDERSTOOD to have been several recent applica- prisoners uttered the words “d-d rascals,” was set aside (4 tions for silk, both at the equity and common law bars.
Chit. Blackstone, 354, note). But to attain this result it is not necessary that the juror should have expressed so decided an
opinion, or any opinion, as to the character or the guilt of the MR. JUSTICE CHITTY will continue hearing non-witness causes prisoner. If there is reasonable ground for suspicion that he will until his list is exhausted. A week's notice will be given before act under some prejudice, a challenge may be made “for favour.” any witness causes are in his lordship’s paper.
In this case “the causes of favour must be left to the judgment and discretion of” two triers (Co. Lit. 157b.), who are sworn to
try whether the juror challenged stands indifferent between the MR. JUSTICE CHITTY will in future rise at two o'clock on parties. The juror objected to may be examined before the triers Saturdays. The result of this change will be that all the courts as to the “ leaning of ħis affection.” And it seems that there are of the Chancery Division will rise at a uniform hour on Saturday. cases in which the court ought to excuse a juryman on the panel
when called, without any challenge being made. In Mansell v.
Reg. (8 E. & B. 54) the court intimated an opinion that if the THERE SEEMS TO BE no good reason why on another matter judge discovers an objection to a juror, he may, of his own the practice of the courts of the Chancery Division should not be motion, direct the juror to withdraw. made uniform. All the judges except Mr. Justice Chitty take their seats in court at 10.30, while he sits at 10 o'clock. Since the court over which he presides is not now closed on one day in each week, as it was in the time of the Master of the Rolls, which the lamented Lord Justice JAMES took part was the deci
AMONG THE LAST JUDGMENTS of the Court of Appeal in the gain of half-an-hour a day is no longer necessary to make sion of In re Goodman's Trusts (29 W. R. 586, L. R. 17 Ch. D. up that loss, and to solicitors the advantage of the extra half. 266), which made an important step towards further lightening hour at their offices would be very great.
the traditional weight with which English law has always pressed upon children held by its rules to be born out of lawful wedlock.
In that case a child who had been born abroad of English parents ONE RESULT of the demolitions in connection with the en- domiciled at the place of birth, and was legitimate by the law of largement of the chapel at Lincoln's-inn has been to reveal that place but not by English law, claimed as one of the next of the unpleasant fact that for years the learned congregation have kin under the partial intestacy of a sister of the father. Lords been in peril from the insecure condition of the roof. The timbers Justices JAMES and Cotton, "held (Lord Justice Lush dissenting) have been found to be decayed, and in addition to the other that the child was entitled to take. A few days ago Mr. Justice alterations contemplated, it will be necessary to re-roof the Fry was called upon to decide (Forestier v. Buddicom) whether building.
he would apply the same principle to a claim to take under a will.
The only other difference in the circumstances was that the The meeting of the Incorporated Law Society to consider the parents, instead of being English and domiciled abroad, were French Procedure Committee's recommendations is unfortunately fixed for people domiciled in France at the time of the child's birth. The a day which debars us from furnishing our readers with a report learned judge held that in this case also the child was entitled to this week. It is, however, obviously impossible that any definite take. At first sight the reader might suppose that no other course conclusions can be come to on Friday, beyond a decision as to the lay open to him, unless he was prepared to dissent from the decimode in which the investigation of the subject is to be conducted. sion of the Court of Appeal in In re Goodman's Trusts. But the We believe it is suggested that a committee shall be appointed to judgments delivered in that case laid so much stress upon certain act with the council and to report to a future meeting on this sub- considerations, by no means so obviously applicable to a will as to ject; and provided the committee is made sufficiently representa- the Statute of Distributions, that sufficient ground might perhaps tive, there seems to be no better mode of dealing with the matter have been found for distinguishing the case. The balance of judicial than this. Many of the proposals of the Procedure Committee opinion, by which In re Goodman's Trusts was decided, Lords involve questions of great difficulty, requiring prolonged considera- Justices JAMES and Cotton against Lord Justice Lush in the tion, and before they are discussed by a large meeting it seems Court of Appeal, and the Master of the Rolls in the court below, desirable that a series of resolutions should be formulated to does not lean so heavily in favour of the opinion which finally won serve as a basis for debate. After this has been done, and the the day, as to forbid all thought of nibbling at its authority. The proposed resolutions have been circulated among the members of decision of Mr. Justice Fry is, therefore, of much importance, ihe society, there will be every prospect of a valuable discussion as probably laying for ever certain doubts which, if once raised, at the adjourned meeting. But we would suggest the advisability, would have been troublesome to settle. in order that the expression of opinion may be general, of introducing a self-denying ordinance restricting the speeches of members on each resolution to not exceeding five minutes.
A QUESTION OF GREAT IMPORTANCE on the construction of section 19 of 59 Geo. 3, c. 12 (“ Sturges Bourne's Act"), was
decided by the Court of Appeal on Friday last. That section IT APPEARS, from the telegraphic accounts which have reached empowers the vestry of any parish by resolution to rate to the this country of the proceedings at the trial of Guiteau for the relief of the poor owners instead of occupiers in the case of murder of the late President, that “most of the jury panel, as houses, &c., “which shall be let at any rent not exceeding £20 called, said that they had formed opinions on the case, and several nor less than £6 by the year for any less term than one year, or said that GyITEAU should be hanged"; that on the first day only on any agreement by which the rent shall be reserved or made five jurors were obtained, and that on the second day the court payable at any shorter period than three months.” The vestry of the parish of West Ham passed a resolution in the terms of this plaintiffs in the above mode, and paid the proceeds into their own section, whereupon one of the owners in the parish possessing a account with their bankers, and from time to time made remittances large number of cottages let at eight shillings a week a piece, or to M. and T. on account of them, but on reference to the defendthereabouts, so that the yearly rent exceeded £20 a year, was ants' books of account the proceeds of the particular cargoes assessed to the poor-rate instead of the cottagers. Against this could be separated and identified. M. and T. carried on business assessment he appealed, contending that the words “at a rent at Leith as well as Glasgow, and they employed the defendants in not exceeding £20,” governed the section, so that the cottages respect of both businesses, and when they stopped payment, which were not assessable under the Act. A special case having been they subsequently did, they were indebted to the defendants upon stated, a divisional court (HUDDLESTON, B., and HAWKINS, J.) the Leith account, but not on the Glasgow account. The plainwas equally divided, but gave formal judgment for the Assess- tiffs having brought an action against the defendants for the net ment Committee. The Court of Appeal (Lord COLERIDGE, C.J., balance of the proceeds of the said cargoes of wheat, after deductand BRETT, L.J.; BAGGALLAY, L.J., dissenting) has now ing the remittances made to M. and T. in respect thereof, but reversed the judgment, but it is understood that there will be a without giving credit for the amounts due to them from M. and T. further appeal to the House of Lords. Upon reference to the on other transactions, the jury found at the trial, first, that the section, which is from its extreme length a peculiarly painful plaintiffs did not, through their agents, employ the defendants to one to read, it will be found that the question of construction is sell and account for the proceeds of the wheat, and secondly, that whether the words, " at any rent not exceeding £20 nor less the defendants knew, or had reason to believe, that M. and T. were than £6, by the year,” are what is called “governing words,” so acting in the sales as agents for a third person. Field, J., held as to apply to all that follows, or whether the words, " or on any that, notwithstanding the first finding of the jury, the plaintiffs, agreement by which the rent is made payable at a less period than upon the admitted facts, were entitled to recover the balance three months,” are to be read independently. Grammatically claimed from the defendants without any set-off in respect of this part of the section will bear either construction, but it also other transactions between the defendants and M. and T., and that contains a power to the vestries to alter the resolution by a new their right to recover was both as undisclosed principals, and also one, “so as no such [new] resolution shall extend to assess the | as being owners of the corn, and as such entitled to follow the proowner of any house which shall be let at a greater rent than £20, ceeds of their property in the hand of the defendants in their or less than £6, as aforesaid.” This proviso seems to show that fiduciary character of agents and trustees. The Court of Appeal the enacting part of the section extends only to houses let at a (Bramwell, Baggallay, and Brett, L.JJ.) reversed this decision, and rent amounting to £20 a year, or less. On the other hand, where held that the plaintiffs were not entitled to recover, as there was the letting is weekly, the tenants are more likely to have their no privity of contract between them and the defendants, and that tenancies determined at short periods, so as to come within the defendants did not stand in any fiduciary character towards the mischief of the section laboriously explained in the pre- the plaintiffs so as to entitle the latter to follow the proceeds of amble. It is curious that so patent an ambiguity should have their property into the defendants' hands without giving credit for escaped legal notice since 1819, when Mr. StuRGES BOURNE the sum due to the defendants from M. and T. on their general passed 59 Geo. 3, c. 12, through Parliament, and it is all the more account. curious because there has been twice legislation in pari materiâ — Stripping the case of mere details, it seems to come to this. i.e., by 13 & 14 Vict. c. 99, and 32 & 33 Vict. c. 41. Perhaps A. employs B. to sell goods for him on certain terms, consigning the decision of the House of Lords on the further appeal may the goods to him for that purpose. B. employs C. as a subgive rise to a consolidation of the law relative to the rating of agent, and hands over the goods to C. for the purpose of effecting owners instead of occupiers.
the sale upon different terms. C. sells the goods and claims to hold the proceeds as against A. as a set-off against the general
balance due from B. to C. It certainly seems to us, we must PRINCIPAL AND SUB-AGENT.
confess, that, whatever the legal result may be, the judgment of
Field, J., was more consistent with the justice of the particular The case of the New Zealand and Australian Land Company v. case than that of the Court of Appeal. It should be observed Watson (29 W. R. 694, L. R. 7 Q. B. D. 374) illustrates rather that there does not appear in this case to have been any question forcibly the uncertainty of law, Field, J., having, upon further of any prejudice to C. arising from his having been allowed to consideration, given an elaborate judgment for the plaintiffs, but suppose that B. was a principal in the transaction and the owner the Court of Appeal having unanimously reversed his judgment. of the goods, for the jury found that the defendants knew, or had The case involves first principles, and ought, one would suppose, reason to believe, that M. and T. were acting as agents for a third to be easy of solution in a manner consistent with justice, but it person. Of course it is a well-known doctrine applicable to cases would appear from the difference of opinion among the judges that of an undisclosed principal that the party dealing with an agent such is not the case. The facts, which were somewhat compli- who purports to act as principal shall not be prejudiced by the cated, were briefly as follows :—The plaintiffs, who were land- intervention of the real principal where, owing to the state of the owners in New Zealand, were in the habit of shipping wheat from account between him and the agent, it would be inequitable that he New Zealand to England for sale on the London market, taking should be so, as, for instance, when he has trusted the agent on the bills of lading which made the wheat deliverable to themselves in strength of having funds of his in his hands. But apparently no London, and indorsing these bills to M. and T., merchants and such consideration came in in the present case. And, under these factors at Glasgow, with instructions to sell the wheat in London. circumstances, with much diffidence, we must say that, apart from M. and T. having no house or agency in London, were themselves technicalities, we have some difficulty in seeing why in justice C., in the habit of indorsing these bills of lading to the defendants, having goods bailed to him by B., for the purpose of selling, of who were cornfactors and brokers in London, for the purpose of which he knows, or has reason to believe, that B. is not the their selling the wheat there. When any sales were effected M. owner, is entitled to hold the proceeds of those goods against B.'s and T. delivered account sales to the plaintiffs in the usual form, general indebtedness to him. deducting a del credere commission of three per cent., whilst the Suppose C., instead of selling the goods, converted them otherterms upon which the defendants were employed by M. and T. were wise to his own use. C. could, under the present state of the law, different, being a factorage of £2 per cent., and not a del credere set off his debt against B. in an action of trover if B. were commission. The indorsement of the bills of lading by the plain the real owner, but clearly not against A., the true owner.
We tiffs to M. and T., and by M. and T. to the defendants, was in each must confess we are rather puzzled to see why, if the proceeds of case only for the purpose of selling the wheat, and without any the goods are sued for as money had and received, the result intention of passing the property in it. The plaintiff's knew that should be different. At the same time we cannot think that it is the sales effected for them by M. and T. in London were made by really a question of equity, or that there is any trust imposed brokers employed by M. and T., but the plaintiffs were in no way upon the proceeds, because they can be earmarked or identified as parties to the particular contracts of sale, nor were their names the proceeds of the goods. Such a doctrine would give A. a disclosed upon them. The defendants effected sales of certain better right than C.'s trustee in bankruptcy, which we do not see cargoes of wheat which had been so consigned for sale by the that he should have. The case cannot, as it seems to us, be put higher than that the proceeds of the goods should be money received to A.'s use, subject, of course, to the equities to which THE PRACTICAL EFFECT OF THE we have before alluded as common to all cases of undisclosed
CONVEYANCING ACT. principals. Field, J., in the court below, seems to have been of opinion
IX.-As to TRUSTS (continued). that one who employs another as an agent ought to have an SECTIUNS 31—36 of the Act are designed to take the place, with election to constitute himself principal in respect of a contract improvements, of some similar provisions contained in part 3 of made by his agent for the purposes of his employment, though Lord Cranworth's Act (23 & 24 Vict. c. 145), which is repealed. possibly, as between himself and his agent, the latter was not, One or two beneficial changes, to be presently noticed, have been strictly speaking, authorized to enter into the contract; and that introduced. the case was within that proposition. Bramwell, L.J., seems to Section 31, which is to take effect only if its operation is not have been of opinion that the fact that the terms as between the excluded by the instrument creating the trust, and subject to its plaintiffs and N. and T., and as between M. and T. and the provisions, begins thus :defendants, were different, was conclusive to show that there
“31.-(1.) Where a trustee, either original or substituted, and whether could be no privity between plaintiffs and defendants. It does appointed by a court or otherwise, is dead, or remains out of the United not seem to us quite clear that this argument is irresistible. Kingdom for more than twelve months, or desires to be discharged from the Assuming that the plaintiffs had the power to elect to put act therein, or is incapable of acting therein, then the person or persons themselves in the place of M. and T. as principals, of course nominated for this
purpose by the instrument, if any, creating the trust, or they must take to the contract cum onere. There could be no if there is no such person, or no such person able and willing to act, doubt that the defendants would be entitled to deduct from the then the surviving or continuing trustees or trustee for the time being, or proceeds the commission for which they had agreed with M. and the personal representatives of the last surviving or continuing trustee, may, Î. Again, it was urged by the learned Lord Justice that, if the in the place of the trustee dead, remaining out of the United Kingdom, defendants were to bring an action for their commission, it must desiring to be discharged, refusing or being unfit or being incapable as aforebe against M. and T., and not the plaintiffs. This seems to depend said." on similar considerations. The plaintiff's possibly might say that Here we find that residence abroad for twelve months has been they were not parties to, and repudiate, the contract made by added to the occasions contemplated by the repealed section 27 of M. and T., but if they elected to take to it they must do so for Lord Cranworth's Act: an addition which very well accords with all purposes ; so that there does not seen any insuperable difficulty the prevailing practice. The section is remarkable for its very arising out of the difference of terms.
free use of the present tense to refer to future occasions, and of A more formidable argument used by the Lord Justice is that the locative adverb where in some sense or another which is at all the plaintiffs could not have sued the defendants for misconduct events not locative. These idioms are the “common form ” of in improperly selling the goods, but must have sued M. and T. We the Act; but they are here employed with more than the common confess that this argument seems to us very weighty, but we awkwardness, and perhaps with more than the common risk of should hesitate before admitting the premiss. It seems ap unfor- misinterpretation. It is possible that the words “ Whenever any tunate state of the law if it be so, because it would be clear
shall die," of Lord Cranworth's Act, have been that M. and T. could, if damages were recovered against them, sue altered into, " Where a trustee
is dead," to the intent the defendants, and therefore there must be two actions instead that the section shall apply to the case of a trustee who has died of one (except so far as the provisions for bringing in third before the commencement of the Act. If this was the desired parties might be available, which hardly affects the argument). object, it might have been better attained by adding the words Lord Justice Bramwell distinguishes the case from that of an “ or shall have died before the commencement of the Act." The undisclosed principal intervening and making himself party as change in this case involves a mere inelegance of expression. vendor to a contract for the sale of goods, on the ground that But ambiguities have elsewhere been introduced. Why have there the authority of the agent is to put the principal in the words “ Whenever any trustee
beprivity with the vendee, whereas there is no authority given come unfit .. to act,” of Lord Cranworth's Act, been to the agent to put the vendors in privity with a sub-agent, altered into, “ Where a trustee
is unfit to act”? There which was what was sought to be done in the case under discus- is no doubt that infancy disenables a trustee to act. This fact sion. But it occurs to us that it may throw some lig on the has no application to the phrase of Lord Cranworth’s Act, for case to consider what the relation of the plaintiffs to the vendee it cannot be said that an infant becomes unfit. But it might be of the defendants would be. Surely the vendee of the goods said that an infant is unfit. It sometimes happens that a testator would be in privity with the plaintiffs if the plaintiffs chose to appoints as trustee or trustees one or more children under age, intervene as principals. Could the plaintiffs, if the price of the in the expectation (not, of course, always fulfilled) that by the goods had not yet been paid over to the defendants, have inter- time of his death they will have reached majority. Are we vened and sued the vendees? If they could, then why should to infer that, by virtue of the present provision, any such infant the mere fact that the price happened to have been paid over to trustee might be removed from the trust upon the ground that he the defendants let in the defendants to set off their general is unfit to act ” in “the trusts or powers reposed in him”? balance against M. and T.? It is to be observed that the decision Under such circumstances the court has deemed it expedient to of the Court of Appeal, carried to its logical consequences, would appoint a new trustee under the Trustee Act (Re Gartside's seem to lead to the conclusion that the plaintiffs had no right to Estate, 1 W. R. 196). sue the defendants at all, not merely that defendants could set
We may observe that in the phrase "person or persons nominoff their general balance against M. and T., and that their only ated for the purpose by the instrument, if any, creating the trust," remedy was against M. and T. as having received the price of the there is some uncertainty, owing to the language of other parts goods through their agents, the defendants.
of the section, whether the words “if any” qualify the words A great difficulty in the particular case is, that the first finding person or persons ” or the word “instrument." In sub-section of the jury stands undisturbed, and if the ultimate decision (5) we find the phrase, “the instrument, if any, creating the is to be considered as based upon that finding, it can hardly be trust ;” and the same phrase is found in sub-section (7). It treated as deciding much in point of principle. The case raises is noteworthy that in these two last-mentioned sub-sections, the interesting and difficult considerations which cannot at present same phrase gives rise to a very different surmise. be said to be disposed of in an altogether satisfactory way.
“(5.) Every rew trustee so appointed, as well before as after all the trust property becomes by law, or by assurance, or otherwise, vested in him, shall bave the same powers, authorities, and discretions, and may in all respects act,
as if he had been originally appointed a trustee by the instrument, if any, Sheriff Macdonald is stated to have declared in his court at Perth on creating the trust.” Monday that all the Acts of Parliament passed during the last twenty years had been the cause of greater annoyance and perplexity than everything in
Here the only powers given are those conferred by “the instruthe Statote-book before that. The Employers' Liability Act in particularment, if any." If there is no instrument, there seem to be no was " an awful hash."
powers. It would therefore seem, so far, that the section con
templates only trusts created by instrument ; that is, (see section left to the court to construe these words as not relating to the case 2, sub-section 13, which defines the term absolutely, and says of a trustee who desires to retire in order to enable his co-trustees nothing about a contrary intention,) by “deed, will, inclosure to commit a breach of trust. There can, we presume, be no award, and Act of Parliament."
objection to both the deeds mentioned in the sub-section being But hear sub-section (7):
united in one deed” “(7.) This section applies only if, and as far as, a contrary intention is not
Though section 33 does not contain any saving of power to expressed in the instrument, if any, creating the trust, and shall have effect settlors to exclude its operation, yet it is not declared to take effect subject to the terms of that instrument, and to any provisions therein con- notwithstanding (to use the Act's formula) any expression of tained."
intention to the contrary. Here the implication seems to be exactly the other way. If “ 33.-(1.) Every trustee appointed by the Court of Chancery, or by the there is no instrument, there is certainly no contrary intention Chancery Division of the court, or by any other court of competent jurisexpressed in it; and the section does therefore seem to apply to diction, shall, as well before us after the trust property becomes by law, trusts created otherwise than by “instrument.” It is superfluous authorities, and discretions, and may in all respects act, as if he had been,
or by aseorance, or otherwise, vested in him, have the same puwers, to remind the reader that trusts may be declared and created of originally appointed a trustee by the instrument, if any, oreating the trust.” chattels personal by parol; and of lands, by any writing sufficient to satisfy section 7 of the Statute of Frauds.
The part of Lord Cranworth's Act for which this is substiWe
may also observe that, though under section 31, sub-section tuted, does not lie open to this doubt, since section 32 of that (1), the appointment of a new trustee may be made by writing Act contains a general power of exclusion which seems to be only, the new trustee will not be able to exercise the powers given tion which ought to have been left doubtful. We may remind
This is not a quesby section 34, unless he is appointed by deed.
The points in which the legislation of section 31 differs from the reader that previously to Lord Cranworth's Act, all the that which it supersedes may be summed up as follows :-(1) powers of original trustees did not pass to trustees appointed by The residence of a trustee abroad is made a ground for the Court of Chancery. The court refused to assume jurisdiction appointing a new trustee in his place; (2) it is enacted that on an to intrust its own nominees with the exercise of powers which appointment of a new trustee (which phrase we presume to apply were thought to imply a relation of personal confidence with the also to an appointment of more than one) the number of trustees settlor. The court also made no attempt to enable its nominees may be increased; which could not, independently of the Act, be to exercise powers which operated by virtue of the Statute of lawfully done ; nor did Lord Cranworth's Act contain any such Uses : a jurisdiction which, if it had been assumed, could only authority, although Malins, V.C., once held that an appointment in the absence of a statutory enactment to bind the courts of
It seems of two trustees in the place of an original single trustee, under common law) have been enforced by circuitous means. that Act, was valid : In re Breary (W. N. 1873, p. 48); (3) to be doubtful whether the statutory power contained in the present the doubt which formerly existed has for the future been removed, section would be intercepted by the express declaration of the as to the lawfulness of a trustee, not expressly authorized so to settlor; and this doubt may sometimes give rise to inconvenido, acting in the trusts before the trust estate has been vested in ence. him. And a fourth change in the law seems to have been effected,
The next section provides a novel method of vesting trust which requires a few words of separate discussion :
property in new trustees. "(3.) On an appointment of a new trustee, it shall not be obligatory to
“34.-(1.) Where a deed, by which a new trustee is appointed to perform any appoint more than one new trustee, where only one trustee was originally trust contains a declaration by the appointor to the effect that any estate or appointed, or to fill up the original number of trustees where more than two interest in any land subject to the trust, or in any chattel so subject, or the trustees were originally appointed; but, except where only one trustee was right to recover and receive any debt or other thing in action so subject, shall originally appointed, a trustee shall not be discharged under this section from vest in the persons who, by virtue of the deed, become and are tbe trustees his trust unless there will be at least two trustees to perform the trust.'
for performing the trust, that declaration shall, without any conveyance or
assignment, operate to vest in those persons, as joint tenants, and for the purWe understand the first part of this provision to mean that in poses of the trast, that estate, interest, or right." cases where a single trustee was originally appointed, but the
This should perhaps rather have said, "without any further number of trustees has afterwards been increased, it shall be lawful to reduce the number of them to a single one.
conveyance or assignment”; for the declaration of course
The latter sub-section part of the
amounts to a statutory conveyance. It is difficult to see what seems to provide that in cases will be gained by substituting this for an actual conveyance in where more than two trustees were originally appointed, it those cases in which a conveyance is usually by the existing shall be lawful to reduce the number, but not below two. Section 32 introduces a wholly new principle into the law of practice included in the decd appointing new trustees ; especially
as covenants against incumbrances on the part of retiring trustees trusts :
will need to be expressly inserted. In some cases the interpreta"32.-(1.) Where there are more than two trustees, if one of them by deed tion of these privately made vesting orders might give rise to trustees and such other person, it any, as is empowered to appoint trustees, by difficulty. If a tenant for life should take it upon himself to deed consent to the discharge of the trustee, and to the vesting in the co- displace, upon the score of “unfitness,” a trustee who should trustees alone of the trust property, then the trustee desirous of being dis- refuse submission to his decision, the question will arise whether charged shall be deemed to have retired from the trust, and shall
, by the deed, the efficiency of the declaration to pass the legal estate is be discharged therefrom under this Act, without any new trustee being dependent upon the propriety of the exercise of the power appointed in his place."
displacement and new appointment. This provision applies only "if and so far as a contrary intention Sub-section (2) makes a similar provision applicable to the disis not expressed in the instrument, if any, creating the trust, and charge of a trustee without the appointment of a new one. The shall have effect subject to the terms of that instrument and to section does not extend to copyholds, or mortgages upon which any provisions therein contained.” It is made applicable to trusts the trust funds are invested, or registered stocks. created either before or after the commencement of the Act. Section 35, which concludes the portion of the Act which we The question may be suggested whether as regards trusts are now reviewing, is in substitution for sections 1 and 2 of Lord containing the usual power of appointment of new trustees, Cranworth's Act. It applies only if not excluded; and only to its operation will be excluded ? We should suppose that, trusts and powers created by an instrument coming into operation in the case of private trusts, where the usual power is merely that (in Lord Cranworth's Act the corresponding provision was con“it shall be lawful” to appoint new trustees, the section will not tained in the word executed) after the commencement of the Act. be excluded by its use. The form in charitable trust deeds is,
“35.-(1.) Where a trust for sale or a power of sale of property is vested in however, often obligatory. We think this statutory power is a trustees, they may sell or concur with any other person in selling all or any fair and proper one and ought to be allowed to come into operation. part of the property, either subject to prior charges or not, and either together But we think that some restriction is needed to qualify the or in lots, by public auction
or by private contract, subject to any such conoperation of the provision, that the retiring trustee shall be think fit, with power to vary any contract for sale, and to buy in at any deemed to have retired from the trust, and shall, by the deed, be auction, or to rescind any contract for sale, and to re-sell, without being discharged therefrom under this Act.” It should hardly have been answerable for any loss."
This, by the use of the word “trust,” removes a doubt which one very brief and broad, given in the introduction, while the other enter has been thought by high authority to hang over the corres
more into detail and is illustrated with notes. The index is arranged on ponding part of Lord Cranworth's Act-a doubt which never
a very ingenious plan, and the cross-references are useful. The Act itself called for judicial decision. It differs from the provisions Rubenstein has evidently taken pains to get at the Act's meaning; and
is printed without other comment than references to the summary. Mr. previously in force, by not including powers of exchange within the result is a creditably clear sketch of what he takes to be the scope its scope.
of the projected alterations in law and practice. But the book makes no claim to be an exhaustive commentary, nor does it eite any cases. If it contains some propositions which we think cannot be defended, that
is a cause for little wonder and less blame. RECENT DECISIONS.
Nothing is more remarkable in the bibliography of this Act than the manner in which successive commentators, reversing the part of Balaam,
start with a declared prefatory bias in favour of praising, only to find LEAVE TO DISCLAIM LEASE.
themselves subsequently tuning their notes in a different key, Ominous (E. parte East and West India Dock Company, In re Clarke, C.A.,
sounds begin early to mingle with Mr. Rubenstein's hopeful anticipa
tions. Turning over a few more pages, we come upon unequivocal blame. 30 W. R. 22, L. R. 17 Ch. D. 759.)
“The provisions of the section (section 18] are of a dangerous In this case the assignee of a lease filed a liquidation petition, and the character” (p. 28). “ The language of the section (section 40] is some trustee in the liquidation applied to the court, under rule 28, for leave to what loose” (p. 40). “It is not easy to suggest what is the effect on the disclaim. The application was opposed by the landlord, on the ground that, of this section (section 58] is not very clear, and the marginal note
whole section (section 42) of the words quoted” (p. 42). "The wording as, by section 23 of the Bankruptcy Act, 1869, a lease, if disclaimed, is to
does not tend to mend matters" (p. 47). At p. 19, in a be deemed to have been surrendered as from the date of the appointment note upon his abridged version of section 3, Mr. Rubenstein makes some of the trustee, the effect of the disclaimer would be to deprive the very good remarks showing how the common stipulation that the landlord of his remedies against the lessee since that date. The landlord purchaser shall bear the expense of investigating the title, though not offered to undertake not to sue the trustee upon the covenants in the lease, dangerous in its working under the existing practice, may easily become and not to make any claim against the estate of the assignee, but did not remarks agree in their outline with those made by us (vol. 25, p. 884)
dangerous when supplied by implication in an open contract. These offer to indemnify the trustee or the assignee's estate against any claim
upon the danger of implying a condition to supersede inquiry into the by the lessee upon the covenant in the assignment to indemnify him. lord's title on a sale of enfranchised copyholds. The general opinion The contention of the lessor, it will be seen, was based on the supposi- expressed upon this point by Mr. Rubenstein does not sound very tion that the opinion of the majority of the judges in Smyth v. North encouraging. " It may be in future as rash to sign an open agreement (20 W. R. 683, L. R. 7 Ex. 242) was incorrect. In that case Martin and
to purchase as it now is to sign an open agreement to sell” (p. 14).
Acquaintance with our columns might have saved Mr. Rubenstein from Pigott, BB., expressed an opinion that disclaimer under section 23 of
some errors, and have supplied him with some information. He explains the Bankruptcy Act did not effect a complete surrender of the lease, the operation of section 13 by saying that, "on sub-demises the title to 80 as, in the case of a bankrupt assignee, to deprive tho lessor of his the leasehold reversion is not to be required” (p. 24). But it is now, we remedies against the lessee on the covenants in the lease. And in believe, agreed on all hands that we were right in referring the operation Ex parte Walton, In re Levy (L. R. 17 Ch. D. 756), Lord Justice James of this section to cases of sub-sub-demise. We have also pointed out the laid it down that section 23 must be understood as saying only that the origin of that mysterious part 1 of the first schedule as to which Mr. Ruben.
stein only conjectures. W were rather startled while looking through lease "shall, as between the lessor on the one hand, and the bankrupt, his Mr. Rubenstein's “Summary,” to come upon the unhesitating imputatrustee and estate, on the other hand, be deemed to have been sur- tion to the Act of something which looked ridiculous, which we had not Ttadered.” In the present case the court did not thiuk it had jurisdic. noticed ourselves; and we turned hastily to section 14 to verify the tion to decide whether this was the right view, and, indeed, it was unne
statement (p. 25) that the covenant against assigning, mentioned in subcessary to do so, for they held that upon an application for leave to dis- section (6) (i.), must be unqualified, and we are bound to say that we
think that, in this instance, Mr. Rubenstein has accused the Act unjustly. claim the discretion of the court should be exercised only with a view to the administration in bankruptcy of the bankrupt's estate, and for the benefit of all persons interested in that administration, and that leave to disclaim ought not to be refused on the ground that the position of other persons would be affected by disclaimer. Since it may be assumed that leave to disclaim is never asked for unless the disclaimer will be
CORRESPONDENCE. beneficial to the bankrupt estate, and that the landlord will never undertake to indemnify the estate of the bankrupt assignee against the
STAMP DUTY, covenant for indemnity in the assignment, the effect would seem to be that leave to disclaim a lease will never be refused. And it may perhaps be
[To the Editor of the Solicitors' Journal.] questioned, having regard to the privciple laid down in the recent case, Sir,--In your number for October 29 last, “Inquirer" asked to be how far in future the power of the court to impose conditions on the advised upon questions of duty, and in your next number (November 5) grant of leave will be exercised as it was in Ex parte Ladbury, In re
I ventured to advise him thereon. Turner (L. R. 17 Ch. D. 532).
“Inquirer's" letter also appeared in one of your contemporaries, but a week after it appeared in your columns, and a correspondent replies in this week's number with opinions quite opposed to those I had expressed.
if, under these circumstances, your correspondent “Inquirer” be
plunged into doubt, I venture to say that the duties named in your conREVIEWS.
temporary by " Z. Y. " are altogether wrong, while, on the other hand, I also venture to say, that if "Inquirer" were to submit the instruments
for adjudication by the Inland Revenue, he would find that the duties I THE CONVEYANCING ACT.
named would be adjudged. THE CONVEYANCING AND Law of PROPERTY Act, 1881 (44 & 45 Vict. c. “Z. Y.,” in his letter to your contemporary, says :-“ Assuming that 41), (BEING AN ACT TO Simplify ConveyANCING), with INTRODUCTION, need for assumption, for, as well that "Inquirer" put his cases clearly
in cases (a), (6), and (c) there was a separate instrument." I saw no SUMMARY, AND PRACTICAL NOTES AND CONVEYANCING PRECEDENTS, AND
and concisely, he also sufficiently clearly, as appeared to me, expressly AX APPENDIX CONTAINING LORD CRANWORTH's Act, 1860 ; THE VENDORS stated there were separate instruments.
ANSWERER. AND PURCHASERS ACT, 1874 ; THE SETTLED ESTATES Act, 1877; AND THE SOLICITORS' REMUNERATION Act, 1881, WITH CAREFUL CROSSREFERENCES AND COPIJUS INDEX, AND FORMS FOR USE UNDER THE ACT. DEFENDED PRISONER ADDRESSING THE JURY. By J. S. RUBENSTEIN, Solicitor. Waterlow Bros. & Layton.
[To the Editor of the Solicitors' Journal.] This, our third book upon the Conveyancing Act, is of much slighter frame than that noticed by us 14st week. The plan is handy and
Sir, -To the judges you name who allow a prisoner to address the jury
as well as his counsel is to be added Mr. Justice Field. This learned deserves some praise. Its chief feature is a double summary of the Act; I judge's view, however, differs from those of his colleagues in the point