The Solicitors' Journal. CURRENT TOPICS. LONDON, APRIL 29, 1882. THE ESTIMATED COST of salaries of attendants, and of cleaning and guarding the Royal Courts of Justice, when fully occupied, is £10,000 a year. The building, when completed, will contain upwards of seven hundred rooms and twenty-one courts. THE RE-HEARING, strictly so called, by a judge of first instance, of a cause decided by him has, since the Judicature Act, become impossible (In re St. Nazaire Company, 27 W. R. 854). The result of this in cases where, previously to the order facts are discovered which were unknown at the being drawn up, hearing, would be to put the parties to the expense of an appeal upon a decree inapplicable to the facts of the case. A way has recently been found out of this difficulty in the Chancery Division, and in more than one instance the practice has been adopted of ordering such a cause "to be restored to the paper." THE CHANCE of the passing of a Government Bankruptcy Bill during the present session has become very small. Even Mr. CHAMBERLAIN cannot now say more than that he " is not without hope that before the end of the session he will be able to introduce the Bill promised in the Queen's Speech"; and, he added that, in that event, it was his intention to refer it to a select or grand committee with other Bills relating to the subject. Considering the length of the Bill and the debateable character of many of its provisions, this does not afford a very hopeful prospect of the measure's reaching the House of Lords before the termination of the session. The fate of recent attempted bankruptcy legislation is, indeed, remarkable. Ever since 1876 the Government of the day has been endeavouring to pass a measure on this subject, but, from one cause or another, Bills starting under the fairest auspices have always failed to pass into law. would, therefore, appear that other people besides ourselves have no great faith in the efforts of Messrs. WOLSTENHOLME and TURNER (1st ed., p. 85, 2nd ed., p. 104) to evade this interpretation of the section. Lord CAIRNS, for example, evidently feels some difficulty in concluding that "other person entitled" in reversion expectant on the term, means, "other person entitled in remainder or reversion after the freeholder." SIR CHARLES DILKE is reported to have said on Monday last, in reply to Sir H. WOLFF, that "it was not the intention of the Government to introduce a measure to enable the Executive to deal with suspects claiming foreign nationality on the principle laid down in the Act 11 & 12 Vict. c. 20." It may be well to point out that the Act in question, which was passed in the era of Chartism at home and revolutions on the Continent, was a temporary one only. Its purpose, as indicated by the title, was "to authorize for one year, and to the end of the then next session of Parliament, the removal of aliens from the realm," and it is repealed, as spent, by the Statute Law Revision Act, 1875. There is, however, still upon the Statute Book an Act which appears to have dropped out of use, but which might possibly be heard of in connection with the subject. We allude to "the Act for the Registration of Aliens," 6 & 7 Will. 4, c. 11. By this statute (section 2) masters of vessels arriving from foreign ports must declare what aliens they have on board, and (section 3) every alien arriving in any port of the United Kingdom from foreign parts "shall present and show to the chief officer of Customs at the port of debarkation "declare, in writing, to such chief officer, or verbally make to him any passport he may have in his possession," and must also a declaration, to be by him reduced into writing, of the day and place of his or her landing, and of his or her name; " and also "declare to what country he or she belongs." By section 4, the officer of the Customs is to register the declaration and deliver a certificate to the alien, and to transmit a copy, "if in Great Britain, to one of her Majesty's principal Secretaries of State," and "if the alien shall have arrived from any foreign country in Ireland," to the Chief Secretary for Ireland. By section 6, when the alien is about to re-embark, he must deliver the certificate to the chief officer of Customs at the port of departure, and that Convey-officer is to transmit the certificate, after inserting therein that con-"such alien hath departed this realm," to the Secretary of State or Chief Secretary for Ireland, as the case may be. This statute, which is a very stringent application of the long extinct passport system, should assuredly be repealed. If some mischievous alien should take it into his head to make the declaration required by the statute to the "chief officer of Customs," he would either impose a large amount of unexpected trouble upon that official, or, in case of his refusal to make the proper entry, might proceed to prosecute him before two justices under sections 8 and 10 of the Act, the effect of which is that such justices would have no alternative but to fine the offender twenty pounds. WHEN THE INTRODUCTION OF Lord CAIRNS' new ancing Bill was first announced, we conjectured that it would tain, in addition to the rejected clauses of last year's measure, some attempt to amend its more obvious defects. No such attempt was made by the Bill as at first issued, but in its latest edition a first step has been taken in that direction by the insertion of the following section: "14.-Section 65 of the Conveyancing Act of 1881 shall apply to and include, and shall be deemed to have always applied to and included, every such term as in that section mentioned, whether having as the immediate reversion thereon the freehold or not; but not "(i.) Any term liable to be determined by re-entry for condition broken; or "(ii.) Any term created by sub-demise out of a superior term, itself incapable of being enlarged into a fee simple." The first of these amendments seems to point to the omission in sub-section (4) of section 65 to provide that the estate in fee simple acquired by enlargement of the long term shall be subject to all conditions to which the term would have been subject if it had not been enlarged, thus enabling such conditions to be destroyed at will by the termor. This is now sought to be remedied by disenabling the termor from enlarging any term subject to a condition. The second amendment is obviously designed to meet the more serious flaw, that, under section 65, the owner of a long term at a substantial rent may create a sub-term at a peppercorn rent, which is capable of enlargement into a fee simple, although the term itself out of which it was derived is not so capable. It MUCH CORRESPONDENCE has taken place recently in reference to an alleged refusal of a Windsor hotelkeeper to serve a soldier in the Life Guards because he was in uniform, and "Red Jacket" in the Standard writes to say that a commanding officer on one occasion ordered four of his non-commissioned officers to go to the hotel in question and demand to be served in the public room, stating that he would summon the landlord if he refused to serve them, and that the threat had the desired effect. But "Red Jacket" adds that "it would greatly assist officers of the army if their comrades of the auxiliary forces would also make a practice of not patronising hotels where such things are known to have occurred; and if magistrates would refuse licenses to persons who infringe the laws on this subject." This letter raises two very important questions in the law of licensing-first, whether it is an indictable offence for a publican to refuse to serve a person who is not a traveller properly so called; and, secondly, whether magistrates have jurisdiction to refuse the license of the peccant publican. The first question is open to much doubt. That it is an indictable offence for an innkeeper to refuse to entertain a traveller is clear from R. v. Ivens (7 C. & P. 213) and Reg. v. Rymer (25 W. R. 415, L. R. 2 Q. B. D. 136), the only excuses being (see Reg. v. Rymer) that the innkeeper has no accommodation, or that the party presenting himself is an unfit guest. But is any member of the public who seeks entertainment a traveller? We think it follows from R. v. Luellin (12 Mod. 445) that he is not. On the other hand, it is distinctly assumed in the Six Carpenters' case (8 Rep. 146) that any member of the public has a legal right to enter and tarry in a common tavern. The question is one which seems to require judicial decision, and, looking to the 18th section of the Licensing Act, 1872, which gives an express right to licensed persons to eject disorderly guests-a right which would not seem to require a statute to give it, if it existed at common law-we think, on the whole, that the point would be decided in favour of the public, and, of course, of the military as well as of the lay element of it. On the other point we have no doubt whatever. It would, of course, be a novel exercise of the discretion of the magistrates to refuse to renew a license on the ground of the exclusion of a military guest; but the words of the Licensing Acts (see Licensing Act, 1828, s. 1; Licensing Act, 1872, s. 42; Licensing Act, 1874, s. 26) are express to indicate that the magistrates possess an absolute and uncontrolled discretion in the matter. And it may be well to point out that not many months ago the authorities in Ireland issued a circular to the magistrates in that country advising them to refuse to renew the licenses of those publicans who might be proved to have refused shelter and entertainment to the Irish Constabulary. SIR JAMES HANNEN'S elaborate exposition of the origin and growth of the practice of the Divorce Court as to a wife's costs, and his defence of that practice against the criticisms of the Court of Appeal in Robertson v. Robertson and Favragossa (29 W. R. 880), may be left without comment, but his interpretation of the construction put by the Court of Appeal on the 159th rule deserves the attention of the profession. That rule provides that "when, on the hearing or trial of a cause the decision of the Judge Ordinary, or the verdict of the jury, is against the wife, no costs of the wife of and incidental to such hearing or trial shall be allowed as against the husband, except such as shall be applied for and ordered to be allowed by the Judge Ordinary at the time of such hearing or trial." The learned judge says that the judg; ments in Robertson v. Robertson show that the Court of Appeal considered that "on the true construction of rule 159 the wife is not bound at the trial to show why she should be allowed more than the sum which, on her statement of the facts, the registrar deemed sufficient, but the husband is to show cause why she should not be allowed all that she may claim. This cannot be done at the trial, for the husband does not then know what the wife's claims will be, nor can it be effectually done before the registrar, for he does not know the judge's view of the necessity for the additional costs claimed. The judge himself must, therefore, if required to do so, consider the propriety of the wife's bill of costs when brought in. This is the course which I have proposed to take in every case which has arisen since the decision of the Court of Appeal in Robertson v. Robertson. Thus the consideration of the justice of the wife's claim to increased costs is unavoidably postponed from the trial till some time after." Without expressing any opinion as to the propriety of this new practice, we may perhaps, with great deference, express a doubt whether it is very easy to extract from the judgments of the Court of Appeal the proposition on which it is founded. In consequence of the alteration in the hour for the evening sitting of the House of Lords for legislative business, their lordships will, in future, sit at a quarter-past instead of half-past ten o'clock in the morning for judicial business, rising at a quarter to four o'clock in the afternoon. LIABILITY OF TRUSTEES AND EXECUTORS RETAINING SPECULATIVE INVESTMENTS. LORD COTTENHAM long ago laid down the rule that even where a testator directed his executors with all convenient speed after his decease to call in and convert into money such part of his personalty as should not consist of money, and hold the proceeds on certain trusts, they had, nevertheless, a reasonable discretion as to the time of sale of speculative investments made by the testator, such as Mexican bonds. "If," he said, "a reasonable discretion were to be denied, if it were to be laid down as an inflexible rule that [the executors] ought to convert the assets without waiting or considering how far it was for the interest of those who are beneficially entitled, there would of necessity be always an immediate sale; the executors would be bound to sell at whatever loss. Such a rule would be in its operation most injurious, and it has never been acted upon by the court, which in cases of this kind has always considered what is for the interest of all partics concerned" (Buxton v. Buxton, 1 My. & Cr. 80). This principle was recognized in Grayburn v. Clarkson (L. R. 3 Ch. 605), where Lord Justice Selwyn said that a direction by a testator that his executors should, with all convenient speed, convert his personal estate, did not "render it obligatory on them to sell at any precise, definite, or particular time, but that they were entitled to exercise a reasonable discretion." And in the recent case of Marsden v. Kent (L. R. 5 Ch. D. 598), the Court of Appeal approved and followed this rule. The executors," said Lord Justice James, "in the honest exercise of their discretion thought it more prudent to wait for a rise, and we think they ought not to suffer because it turns out that they committed an error of judgment. It would be very hard upon executors who have been saddled with property of this speculative kind, and have endeavoured to do their duty honestly, if they were to be fixed with a loss arising from their not having taken what, as is proved by the result, Iwould have been the best course." The general principle upon which the liability of trustees and executors who retain speculative securities is to be determined is, therefore, clearly settled. The difficulty lies in ascertaining the tests which will be applied by the court to ascertain whether a trustee has exercised a reasonable discretion as to the time of sale of such securities. 66 between cases where the sale has been made within one year from It seems, in the first place, that an important distinction is made the testator's death, and where it has been made after that year. Though there is no fixed rule that conversion must take place before the end of the year, yet that is considered the prima facie rule (Grayburn v. Clarkson, L. R. 3 Ch. at p. 606). A sale within twelve months will be presumed to be a reasonable exercise of discretion (Ib.; see also Hughes v. Empson, 22 Beav. 181). Lord Justice James, in Marsden v. Kent, said that executors were converted" speculative securities, but it may perhaps be "entitled to wait twelve months before they doubted whether this is justified by the other authorities, and whether they do not tend to show, not that trustees and executors retaining speculative securities for any period short of twelve months will, under all circumstances, be absolutely free from liability for their depreciation, but that the of discretion will be thrown on the persons seeking to saddle them onus of proving that the retention was not a reasonable exercise with the loss. On the other hand, if speculative securities are retained beyond the twelve months, the onus will lie on the trustees and executors of showing some reason for their retention (Grayburn v. Clarkson). In the next place, it is obvious that the decision as to what is the nature of the securities retained. Shares in companies with a reasonable exercise of discretion must depend to some extent on unlimited liability should be sold as early as possible; but it seems that even in this case a sale within twelve months will be presumed to be a reasonable exercise of discretion (Grayburn v. Clarkson). After twelve months, however, a strong case will their retention. Thus, in Sculthorpe v. have to be made out by the trustees and executors to justify Tipper (L. R. 13 Eq. 232), trustees had retained shares belonging to their testator in an unlimited banking company for two years and a quarter after the testator's 66 speculative property not sold within the twelve months, though some of the property consisted of shares in an unlimited company. In the very recent case of Robinson v. Murdoch (30 W. R. 162), a power given by a testatrix to trustees to "continue to hold" all shares or stocks in companies which might belong to her at the time of her death, "should they consider it advisable or expedient to do so," was held by the House of Lords to justify the retention by the trustees of the stock of an unlimited bank, there being nothing to show that the retention was not an honest exercise of the general discretion given by the will. There could, one would think, be little doubt about this proposition; but an ingenious contention was raised for the beneficiaries in this case, which deserves attention in connection with the subject of this article. It appeared that soon after the testatrix's death the question of the retention of the bank stock was discussed between the trustees and S., a person beneficially entitled to a life interest in the trust fund, and that the trustees had expressed themselves as unwilling to retain the stock, but at the request of S. they consented to retain it. This, it was contended, was 'an abdication of their duty of judgment," and not a reasonable exercise of the discretion given them by the will. But the House of Lords declined to take this view. Lord Selborne said that "it would be most dangerous to hold that trustees, having such a discretion to exercise, might not freely discuss with the beneficiaries the reasons for and against a particular decision, without running the risk of being held to act against their own judgment if they should, in the end, disregard objections to which they had, in the first instance, thought it right to draw attention." The standard for calculating the loss which has occurred through the retention of speculative securities beyond the twelve months from the testator's death seems, according to the only case which, so far as we know, has distinctly laid down a rule on the subject, to be the price of such securities at the end of such twelve months. This seems a very odd and arbitrary time to fix, but it appears to have been the period selected in Hughes v. Empson. In that case the chief clerk had calculated the average price of the shares during two months from the time of the testator's death, and, deducting therefrom the price of the shares at the date of his certificate, had charged the executor with the difference. But the late Master of the Rolls said that "he would charge him with the loss which would have occurred if he had sold them at the end of twelve months." death, when the bank was wound up. It was shown that they had acted in perfect good faith, and as they considered best for the interest of their beneficiaries, but it was held by Malins, V.C., that they were liable to make good the loss sustained by their not having sold the shares within the twelve months. "In a limited company," said the Vice-Chancellor, "you may sell at a greater or less loss to the estate, but without incurring any further liability [by retaining the shares]; but in an unlimited company [the result of retention] may be the entire sweeping away of the testator's property. Where the property is invested in the shares of an unlimited company, unless a retention is actually ordered by the will, it is the duty of trustees to get rid of it as soon as possible, so as to exonerate the estate from liability." In In re Norrington, Bradley v. Partridge (28 W. R. 711, L. R. 13 Ch. D. 654) Baggallay, L.J., seemed to think that in Sculthorpe v. Tipper the direction by the testator that his property should be sold "immediately after his death, or as soon thereafter as the trustees might think fit," made a difference, but we apprehend that the meaning of this direction does not differ from that of the words "with all convenient speed" used in Buxton v. Buxton. But in the case of securities not subject to this liability, all the trustees will have to show in order to justify their retention beyond the twelve months will apparently be that they "endeavoured to do their duty honestly with a view to do what they thought beneficial to everybody interested (Marsden v. Kent). The circumstances at which the court will mainly look appear to be these:-Did the trustees act without any view of obtaining a benefit for themselves (Marsden v. Kent); is there anything in their correspondence or acts showing any intention other than a desire to increase the trust property; is it the fact that since the testator's death the price at which he bought the shares had not again been reached; were there any circumstances connected with the trust estate rendering an earlier sale of the speculative securities a matter of pressing moment; and did the beneficiaries require or suggest an earlier sale (see these points commented on in Lord Cottenham's judgment in Buxton v. Buxton). With reference to this last matter, it appears that if one of the beneficiaries requests the trustee to sell, the latter ought to call on all the other beneficiaries to join in the request (Marsden v. Kent), and, of course, if they do so, being all capable to request, the trustees must sell; but the fact that one, or perhaps even the fact that a majority, request a sale, will not deprive the trustee and executor of his right to exercise an honest discretion; nor will even the request of a cotrustee (Buxton v. Buxton). Another matter which the court will consider is whether the trustee exercised a vigilant attention throughout as to the propriety of selling the speculative securities (1 My. & Cr. 95). It is obvious that no reasonable discretion can be SOME NEW BANKRUPTCY PROPOSALS. exercised by a trustee who omits to make any inquiry as to whether the time is or is not favourable for sale. Whether the fact that a trustee has been disabled by illness from making such inquiries or from selling the securities will furnish a sufficient excuse, has not been decided. In Grayburn v. Clarkson this was alleged at the hearing of the appeal, but the court said it was hardly a matter then to be inquired into, for it ought to have been brought before the court originally. The question how far trustees are exonerated from the rules we have above considered by an express direction in the testator's will depends, of course, upon the explicitness of such direction. The full consideration of this matter would be beyond the bounds of our article, but it seems that if the testator gives his trustees" an absolute discretion to sell and convert" specified shares in an unlimited bank held by him, "at such time or times as they may think proper," this will suffice to protect them in retaining such shares (Edwards v. Edmunds, Weekly Notes, 1876, p. 124); but as the report of this case omits to state for how long a time the shares were retained, it is impossible to say whether the protection was extended beyond the twelve months. But in In re Norrington, Brindley v. Partridge (28 W. R. 711, L. R 13 Ch. D. 654) it was held that under a direction by a testator that "it should be lawful for his trustees to postpone for such period as they in their free discretion should think fit the sale and conversion into money of all or any part of his personal estate, and his trustees should not be responsible for any loss, risk, or damage which might be occasioned by such postponement," the trustees were not bound by the ordinary rule as to liability for depreciation of II. THE Bill which has been introduced at the instance of the Association of Chambers of Commerce of the United Kingdom, and bears the names of Mr. Barran, Mr. Norwood, and other gentlemen, and which was read a second time on Monday last, differs very materially from Mr. DixonHartland's Bill which we discussed last week. It proceeds entirely upon lines of its own, and proposes provisions which, for the most part, are at variance with those of the Government Bill, whilst it is silent upon many of the points provided for by the Government Bill of last session. As a complete Bill for the amendment of the law of bankruptcy it appears to us about as crude a production as could well be submitted to Parliament, but viewed merely as a contribution to the discussion of the question it contains some proposals which are well deserving of consideration. The Bill, compared with the Government Bill, or the Bill of Mr. DixonHartland, is a very short one, consisting of thirty clauses, extending to seven pages of print only, whilst that of Mr. Dixon-Hartland occupies over thirty pages exclusive of the schedules. We propose to deal with the material clauses of the Bill, taking them in their numerical order. necessary to constitute a petitioning creditor's debt with regard to Clause 4 proposes the substitution of £20 for £50 as the amount traders only, and also in section 6, sub-section 5, and section 87 of the principal Act. The Government Bill proposed the reduction of the amount of a petitioning creditor's debt in all cases, and we have already stated our objections thereto (ante, p. 71). We object to the reduction in any case, and would oppose the proposition, even though limited to traders. The second proposal is in accordance with our own suggestions upon the Government Bill (ante, p. 92), whilst with regard to the third proposal we prefer that made by the Government, which would apply the principle to all executions without limit as to amount (ante, p. 194). Notwithstanding the evils attending the present law as to the appoint The provisions of clause 10 of the Government Bill (ante, p. 92) appear not to be satisfactory to the promoters of this Bill, and their views are contained in the next clause, which is as follows:: "6. When a bankruptcy petition is hereafter presented against a debtor, no action against the debtor in respect of any debt proveable in the bankruptcy shall be commenced or proceeded with after the filing of the petition, unless with the leave of the court and on such terms (if any) as the court thinks just." We think this proposal decidedly inferior to that of the Government. Creditors ought not, in our opinion, to be interfered with in the pursuit of their legal remedies until the court has actual control of the debtor's affairs or possession of his property; and it might be that the petition could not be sustained for want of proof of some of the requisites, in which case the other creditors would have been unjustly delayed in enforcing payment of their debts. Clause 7 is a provision somewhat similar to clause 14 of the Government Bill (ante, p. 107), but, inasmuch as the appointment of official receivers forms no part of this Bill, the proposition is that a bankrupt shall file in court a statement of his affairs within three days after adjudication, instead of furnishing it to the official receiver. The costs of preparing such statements are not provided for. Clause 8, so far as it goes, we consider an improvement upon clause 15 of the Government Bill. It provides as follows: "8. The registrar shall, as soon as may be after the bankrupt has filed a statement of his assets, debts, and liabilities, convene the first meeting of creditors, to be held not later than fourteen days after the adjudication, at such place as the registrar shall deem the most convenient to the majority in number of the creditors.' Clause 9 provides that, in case of the adjournment of any meeting, "the like notices of the adjourned meeting shall be sent to all the creditors as in the case of the original meeting, and shall be accompanied by a statement in the prescribed form, showing the proceedings at the meeting which was so adjourned, and the matters proposed to be done at the meeting to which the adjournment is made." We cannot congratulate the framers of the clause upon the neatness of the language used, and as to the principle of the proposal, we doubt whether the advantages to be gained by it would compensate for the increased cost which it would occasion. It is a point, however, for which the Government Bill makes no provision, and it well deserves consideration. The next clause deals with a question which was raised in these columns (ante, p. 226)-viz., the placing of a restriction on the rights of voting by creditors holding collateral securities; at least, we presume that is the intention of the clause, but we must confess that we cannot make much sense of it as drawn. We print it at length : shall pay "into such bank as the majority of the creditors in number and value at any general meeting shall appoint, and, failing such appointment, into the Bank of England"; whilst rule 109 states, "Where the credi tors shall have failed to appoint the bank, into which the trustee is to pay all moneys received by him, he shall pay them into such bank as the committee of inspection, or, where there is no committee, the court, shall appoint." The promoters of this Bill have their own ideas as to the accounts to be furnished by a trustee, which they provide for in the next clause. Their proposal is that, in addition to the accounts at present required to be furnished to the comptroller, under section 55 of the Act of 1869, the trustee shall make a statement of accounts not less than every six months, to be circulated amongst the creditors and presented to the court, such statement to "show all moneys or assets which have become payable to, or receivable by, the trustee down to the date of the statement, and shall state the reason why any such moneys have not been collected and divided, and shall be verified by affidavit or otherwise in the prescribed manner." This is a charming proposal for the increase of costs! The taxation of costs is dealt with by clause 15. It provides that the accounts of every trustee, and all bills and charges of solicitors, receivers, managers, accountants, auctioneers, brokers, and other persons shall be taxed by the taxing officer within the prescribed time, and would give the court power to charge a trustee with the costs of taxation of his charges As a counter-proposal to in case of their being disallowed or reduced. that of the Government (clause 26, ante, p. 151) we fail to see any value in this clause. Clause 16 provides for the declaration of the first dividend, “if any,” within six months after the first meeting, and subsequent dividends, "if any, ... every six months until the conclusion of the bankruptcy.' We presume a trustee cannot declare dividends unless he has funds in hand to do so with. The proposition as contained in this clause is simply impracticable. Trustees cannot always control the time required to realize estates, and considerable latitude and discretion must be given to them in most cases. If the clause contained a proviso that the trustee should not be required to declare a dividend unless he should have funds in hand sufficient, after providing for all costs and contingencies, to pay & dividend of, say, a shilling in the pound, we could understand the proposal; but even with such a proviso we do not think the clause would answer. By the next clause it is proposed to substitute for special resolutions in section 48 of the present Act (relating to the discharge of bankrupts) "a resolution in writing, signed by or on behalf of a majority in number and three-fourths in value of all the creditors who have proved in the bankruptcy." And, further, that notice of application for discharge shall be published and sent seven days at least before the hearing "to every creditor who has proved, and the court may hear any creditor in opposi tion to the application." Upon the first point we would abolish resolu tions of creditors upon the question of discharge altogether instead of making them more stringent, and think the Government proposals as to a bankrupt's discharge infinitely superior to this. As to the second point, the Government proposal is that twenty-one days' notice shall be given to the creditors, any creditor intending to oppose to give seven days' "10. For all the purposes of voting under the principal Act, or under this "Whenever any security held by a creditor has been valued, and the holder thereof has voted in respect of the balance, the trustee under the bankruptcy may require the creditor to assign such security to the trustee on payment of the amount at which the security was valued, and ten per cent. thereof addition thereto, and the creditor shall assign or account for the security accordingly. the ground of expense, but as between the two we consider the Govern- Clause 18 provides that "it shall be the duty of the trustee to report to the court whether the debtor has or has not kept proper Clause 19 would further amend section 48 of the Act of 1869 by pro- "This section shall not apply to any bankruptcy commenced before the commencement of this Act." The views of the promoters of the Bill upon the question of proxies are presented in the next clause, which is as follows: "11. No proxy shall be used in relation to any proceedings under the principal Act or this Act for the purpose of voting the remuneration of the trustee or any other person, or for the discharge of the trustee or the bankrupt unless authority to vote upon such matters is specifically given by the instrument of proxy." The question of the appointment and control of trustee is dealt with in the next clause. It is proposed to give the committee of inspection all the powers which the creditors now have as regards the "appointment, removal, remuneration, or otherwise " of a trustee, the court also having power to remove a trustee and make orders as to any matter to be done by him on the application of a creditor, with other minor provisions. We consider this a most unwise proposal. The creditors can now, if they like, give the committee all these powers, except the removal of a trustee, and if they do not choose to do so, we think it would be a great mistake to give them to the committee by statute. Clause 13 further proposes to place the appointment of a bank in the hands of the committee. At present there is a material discrepancy between the Act and the Rules. Section 30 provides that the trustee of fictitious capital, or that he could not have bad at the time when any of his debts were contracted any reasonable or probable ground of expectation of being able to pay the same, or that, if a trader, he has with intent to conceal the true state of his affairs wilfully omitted at any time to keep proper books or accounts, or that, if a trader, he has within three years before the commencement of the bankruptcy failed to keep usual and reasonable books and accounts, or, whether trader or not, that his insolvency is attributable to rash and hazardous speculation or unjustifiable extravagance in living, or that he has put any of his creditors to unnecessary expense by frivolous or vexatious defence to any action or suit," the court may either refuse or suspend the discharge or grant it subject to conditions as to future income or after-acquired property. The foregoing does not comprise all the proposals of the Government upon the question of discharge, though it does include several of them, and also includes two new ones which we have distinguished by printing in italics. Those are culled from the Act of 1861. The words appearing between the two in italics are also taken verbatim from that Act and differ materially from the corresponding provision in the Government Bill (ante, p. 162). Under the Act of 1861 the clause was found to be practically a dead letter, as it was never possible to prove that a bank. rupt "could not have had" such "ground of expectation." With that experience, therefore, it is idle to propose its re-introduction without amendment. The Government proposal recognizes this. The period of three years mentioned in section 54 of the present Act (relating to the status of an undischarged bankrupt) is, by clause 21, proposed to be reduced to one year, except as "to any bankruptcy closed before the commencement of this Act." The Government propose to repeal that section altogether, as it is inconsistent with their other proposals, and it is quite as inconsistent with clause 19 of this Bill. Clauses 22-25 relate to compositions, and differ entirely from the Government proposals, inasmuch as the principle of the present law is retained, but certain alterations in the details thereof suggested. We sympathize very much with the views of the promoters of this Bill in adhering to the principle of giving a certain majority of creditors a right to bind a minority to the acceptance of a composition without having to go through the medium of an adjudication in bankruptcy, though we are afraid that the Government proposal in this respect will be made a sine qua non, and that was our reason for not discussing the point in our comments upon the Government Bill, though we did incidentally allude to it in our remarks upon clause 3 of that Bill (ante, p. 70). The majority to be required for such a purpose might, we think, be very well increased, say, to two-thirds in number, and seven-eighths in value, or any other majority which, after a full discussion, might appear reasonable, but so that a comparatively small section of creditors should not, for purposes of their own, prevent the carrying of a reasonable composition satisfactory to the great bulk of the creditors. In the great majority of cases the Government proposal would operate to entirely defeat the carrying of any composition, and in any event the expense and delay which it would occasion would reduce the amount of composition which a debtor would be able to pay. We should not object either to placing a minimum limit upon the amount of composition, say five shillings in the pound, which would be consistent with the Government proposals. In our opinion the clauses in this Bill, though very incomplete, might be made the basis for a satisfactory settlement of the question. We print them at length. "22. Every petition for composition shall be accompanied with a statutory declaration made by the petitioner, and containing a list of all his creditors, with their addresses and the amounts due to each, and a statement of any securities or set-off which they respectively hold or are entitled to, with any other prescribed particulars; and a copy of such list, showing separately each debt exceeding ten pounds, and showing the aggregate of the debts not exceed. ing ten pounds, thall be sent by the petitioner to each of such creditors whose claim exceeds five pounds. Any person wilfully making a false declaration in respect of any such matters shall be deemed guilty of a misdemeanor punish able under the Debtors Act, 1869, and shall be liable to imprisonment with or without hard labour for any term not exceeding one year. "23. For the purposes of section 126 of the principal Act, relating to the acceptance of a composition, the majority of creditors necessary for passing or confirming an extraordinary resolution shall be a majority in number and not less than three fourths in value of all the creditors. "24. So much of the 28th section of the principal Act as enacts that the trustee may, with the sanction of a special resolution of the creditors assembled at any meeting of which notice has been given, specifying the object of such meeting, accept any composition offered by the bankrupt, shall be repealed, and in lieu thereof the following provision shall have +ffect: "At any general meeting of the creditors in a bankruptcy, in case an offer be made by or on behalf of the bankrupt to pay a composition upon the whole of the debts of the bankrupt, and to give security for payment of such composition, and a majority in number and four-fifths in value of the creditors voting at such meeting, resolve that such offer be entertained, the trustee shall forthwith advertise in the prescribed manner the terms of the offer and the resolution, and give notice of a day, hour, and place for the holding of a further meeting to decide upon the offer, and shall also send to every creditor who has proved or claimed in the bankruptcy, or who is named in any statement made by the bankrupt, a notice stating the terms of the offer and the proposed security, and a list of all such creditors as aforesaid, with the amount of their respective claims, and the estimated value of the bankrupt's estate, and any other prescribed particulars. "If at such further meeting the offer is accepted by a majority in number and four-fifths in value of all the creditors, the same shall be deemed to be adopted, and upon proof of such adoption, the court shall approve the composition in the manner and with the consequences mentioned in the Baid 28th section with respect to compositions. "25. If at a meeting of creditors convened for the purpose of consider ing or confirming an extraordinary resolution accepting a composition in satisfaction of the debts due to them by the debtor, no such resolution is passed or confirmed, the following consequences shall ensue (that is to say), "(1) The proposal made by or on behalf of the debtor to pay a composition shall be deemed to be an act of bankruptcy within the meaning of section 6 of the principal Act; and "(2) The court shall, upon proof thereof, adjudicate the debtor a bank. rupt." By the next clause the 125th section of the Act of 1869 (relating to liquidation by arrangement) and all other provisions therein "which are inconsistent with this Act are repealed." Clause 27 proposes to reduce a landlord's right to distrain after the commencement of a bankruptcy to six months' arrears instead of twelve months', as provided by section 34 of the Act of 1869. We discussed the question of the landlord's right of distress in case of bankruptcy at some length in our comments upon clause 63 of the Government Bill (ante, r. 195), We agree with the reduction to six months, as proposed by this clause, and do not approve of the Government proposal entirely to deprive a landlord of his right of distress. It may be that the Legislature may hereafter see its way to abolish the law of distress altogether, as has already been proposed in the House of Commons this session, but if so, let it be done by legislation specially directed to that point, and not by a side wind. But to make the law satisfactory in case of bankruptcy, there must be something more than a mere reduction of the period as proposed by this clause. Take the recent case of Frith and West, before the county court at Manchester, reported in these columns (ante, p. 201). In that case the creditor succeeded in setting aside the landlord's distress upon another point, but had that point not have been open to them, what would have been the result? Simply that by reason of the distress having been levied before the filing of the petition by the debtors, the landlord would have been entitled to have proceeded therewith for the full amount of arrears claimed, which would have swept away the whole of the estate from the other creditors. We refrain from pursuing the point any further in connection with the subject of this paper, as we stated our views very fully in our remarks upon the Government Bill. An alteration in the law as to voluntary settlements by traders is proposed by the next clause. It is proposed to extend section 91 of the Act of 1869, by providing that any settlement which would be void under that section if the settlor became bankrupt within two years, "shall further be void as against the trustee in bankruptcy of a settlor who becomes bankrupt within three years following the expiration of such two years, unless within one year after the date of the settlement the same be registered and notice given in the London Gazette. We are of opinion that this is an uncalled-for proposal, and that section 91 of the present Act is quite stringent enough. The Government Bill of last session contained provisions (clause 57) for the administration in bankruptcy of the estates of deceased persons. We commented at some length upon that clause (ante, p. 180) and found fault with its crudeness and the omission of any provision for a number of points which suggested themselves to us. But if the Government proposal was open to this objection, how much more so is the proposal contained in clause 29 of the Bill, which we are now discussing, which deals with the same subject? It is not worth while taking up space in discussing a clause so bald in its terms, and we will, there. fore, simply print it at length, leaving it to speak for itself. "29.-Every court having jurisdiction in bankruptcy shall have jurisdic tion to administer the estate of a deceased person whose estate is insufficient to meet his debts and liabilities, whatever may be the amount of the estate or of the debts and liabilities. "If, in the course of such administration, it appears that the estate is sufficient to meet the debts and liabilities, the court may either dismiss or continue the proceedings on such terms as to costs to be paid by any person or otherwise as it thinks fit, or as may be prescribed. "For the purposes of this section every court having jurisdiction in bank. ruptcy shall have all the same powers and jurisdiction (whether original or by way of appeal) as in cases of bankruptcy, and shall (in addition to its powers as a court of bankruptcy) have all the same powers and jurisdiction as may be exercised by any division of the High Court of Justice for the administration of the estates of deceased persons. in the same manner as rules for the regulation of proceedings in bank. "Rules may be made for the regulation of proceedings under this section ruptcy." The last clause simply provides that the "Act shall not extend to Scotland or Ireland." THE JUDICIAL STATISTICS. PROBATE DIVISION. In the principal registry of the Probate Division there were 11,921 probates and 5,747 administrations granted in 1879-80, as against 12,536 and 6,153 in the previous year. The caveats entered numbered 1,261; there were 413 motions and 1,275 summonses; there were 28 trials by special jury, 26 by common jury, and 65 by the judge without a jury, Only 2 notices of appeal were given, but there were 74 probates or administrations revoked. The total amount of fees in court and contentious business was £2,176. The stamps issued for probate and administration in the principal registry amounted to £1,417,328, and, for the district registries, £1,045,827, making a total revenue, from this source, of £2,463,155, as against £2,109,271 in the previous year. The effects of testators and intestates were sworn under £72,055,855 in 1879-80, and under £80,326,190 in 1878-9. By a statement of the income and expenditure in respect of the fees levied in the principal registry in 1879-80, it appears that the sum taken in stamps was £67,329, and in the previous year £70,930. The expenditure in 1879-80 was £46,602 for salaries, £6,374 for registering and copying clerks, and £467 for incidental expenses. PROBATE DISTRICT REGISTRIES. In the 40 district registries there were granted, in 1879-80, 18,676 probates and 8,907 administrations, being a total of 27,583 as against |
