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notice is stated in the liquidation rule, the presumption being of architectural and building terms. The book seems to us a very that the notice need only be a four days' one under rule 50.
complete and satisfactory manual, alike for the lawyer as for the architect Many more instances of the useless and puzzling discrepancies
and builder. between the two practices might be given, but we have quoted enough to illustrate our meaning. We cannot think that these
THE CONVEYANCING ACT, differences in practice were ever designed or intended. It would THE CONVEYANCING AND LAW OF PROPERTY ACT, 1881, AND THE VENDOR appear as though the drafting of the rules in bankruptcy and liqui
AND PURCHASER ACT, 1874, WITH Notes ; AND FORMS AND PRECEDENTS dation were given to two different draftsmen, each of whom
ADAPTED FOR USE UNDER THE ACTS ; ALSO THE SOLICITORS' REMUNERAperformed his task without consultation with the other, and in the
TION Act, 1881. By EDWARD PARKER WOLSTENHOLME, Barrister-at
Law, one of the Conveyancing Counsel to the Court; and RICHARD baste of getting the rules out they were not sufficiently revised so as
OTTAWAY TURNER, Barrister-at-Law. William Clowes & Sous. to correct these glaring inconsistencies. This, of course, is merely a
In our review of the first edition of this work we ventured to surmise, but it is the only way in which we can account for the
express some surprise that, though it of course contained many valudiscrepancies. If, without troubling the Legislature, the rules had able observations, it also contained an unexpectedly large number which long ago been thoroughly revised, so as to wipe out these anomalies, seemed open to adverse criticism. Upon the additions which have we think there would have been considerably less complaint to be been made to the notes, we have the same opinion to expressfound with the working of the present law. And the correction
namely, that they contain valuable and instructive observations, but of these are not the only amendments in the law of bankruptcy
not these alone. We shall notice only the following. At p. 55, in an which might be made by rules alone. The whole system of
addition to the note upon section 18, apparently by way of warning
against excluding the mortgagor's power of leasing, great stress is laid proxies, for example, might be re-modelled upon the basis of the
upon the inconvenience which might result to the mortgagee it he Government proposals by the making of new rules to take the
should foreclose and find a common law lessee of the mortgagor iu place of rules 85 and 86, as section 80, sub section 8, is, we possession. We must beg leave to repeat our opinion that these fears think, sufficiently wide for that purpose.
are chimerical. The mortgagor's lessee would not have accepted the lease for love of the mortgagor, but because he liked the tenancy; and he would in most cases be quite willing to continue it under the
mortgagee, if the latter did not wish to eject him. But the question REVIEWS.
does not (as the advocates of section 18 sometimes seem to insinuate) lie between having no power of leasing at all, and giving an unlimited
power of leasing to the mortgagor. If the mortgagee has a proper BUILDING LEASES.
power of leasing, he would not be likely to suffer much inconveTAB LAV RELATING TO BUILDING LEASES AND BUILDING CONTRACTS, THE
nience from the absence of a power of leasing in the mortgagor. IMPROVEMENT OF LAND BY, AND THE CONSTRUCTION OF, BUILDINGS. With
And we can easily imagine that consequences much more serious a full Collection of Precedents, together with the Statutes relating to
than those depicted by our learned authors might follow from Building, with Notes and the Latest Cases under the Various Sections,
leaving to the mortgagor the absurd power given by section 18, suband a Glossary of Architectural and Building Terms. By ALFRED
section (1), including, as it does, power to grant building leases for five EMDEN, Esq., Barrister-at-Law. Stevens & Haynes.
years at & peppercorn rent. Large additions have been made to the This is a careful digest of a branch of law which, so far as we know,
precedents. The eminent position among conveyancers enjoyed by
Mr. Wolstenholme makes it a delicate task for less considerable persons has not yet been fully treated. The subject, it will be seen, embraces
to criticize precedents issued under his sanction. We shall only men. both building leases, contracts to build, and the law relating to the con
tion a very few points which have occurred to our notice within the struction of buildings; and the arrangement of the work naturally follows
range of less than half a dozen pages. That an observation formerly in general these divisions. The first five chapters are chiefly devoted to
made by us (suprà, p. 160) upon & form of covenant to keep up agreements for building leases and building leases. It might have been
fire insurance, in the first edition at p. 128, and now at p. 155, was not more convenient to treat of the persons by whom building leases may be
ill founded, is shown by the fact that the form is now corrected in granted, and agreements for such leases entered into, first, but the author
accordance with our criticism. At p. 152 there is a form of covenant has postponed it to his fourth chapter. And the chapter on the form of
for payment of interest which begins with these words :-" And also so agreement to build might, we should have thought, have been combined with chapter 6 on “the contract to build."
long as any principal money shall remain due under these presents after Chapter 6, relating to the
the day aforesaid." We submit that the words in italics do not contract to build, is followed by chapters on the duties and liabilities of
indicate with desirable strictness the day referred to, there being more the architect, preliminary drawings, specifications, &c., approval and per
than one “day aforesaid," notably the day of the deed's date. The formance of work, and other matters relating to these subjects, including
next form is as follows: a useful chapter on " extras." Chapter 16 is devoted to the subject of specific performance of building contracts and agreements for build
«STO FOLLOW DEMISE OF LEASEHOLDS.] ing leases; and chapters 18 to 23 relate to different branches of
“Trust of "And [mortgagor] bereby covenants with [mortgagee(s)] that
principal term mortgagor) will henceforth stand possessed of the premises the subject of the rights and liabilities of the building lessee, 80 in mortgage far as they are distinct from his rights and liabilities under the
by sub-demise, comprised in the said lease for the residue of the term thereby
granted In trust for (mortgagee(3)] and to assign and dis. general law of landlord and tenant. With regard to the execution
pose of the same as he [tboy) or the persons or person entitled of this part of the work we can speak favourably. The cases have
to the prinoipal money for the time being due on tbese been carefully collected, and, although they are sometimes stated at
presents sball from time to time direot, but subject to the greater length than we should think necessary, they are, in the instances
proviso lor redemption hereinafter contained." we have examined, stated with accuracy. We are not quite prepared to state that all the author's deductions from them are the best that could be
The common practice in mortgages by sub-demise has hitherto made; for instance, although he has certainly Lord Blackburn's authority
always been to make the trust of the residue of the term, in favour of for his statement that in Lewis v. Hoare (29 W. R. 357), “all that the
the mortgagee and his representatives, apply only " after any sale made plaintiff had to show was that the work had been done so as morally to
under the aforesaid power of sale." Messrs. Prideaux and Whitcombe entitle the builder to a certificate," we should have preferred Lord
(11th ed., vol. 1, p. 514) adapt this to the Act by saying :-"After any sale Watson's way of putting the matter, that "if the certificate had been
of the said premises or any part thereof, under the statutory power of given, it could not have made the houses more complete than they were
sale." It is seldom that anything is gained by deserting a well-estabin fact, and the fact that it was withheld did not render them less so."
lished form without any reason ; and we here see nothing in the estab. And in the statement of Marsden v. Sambell (28 W. R. 952), at p. 125,
lished form to require such a violent departure from it as is displayed by
that of Messrs. Wolstenholme and Turner. We do not see how the we find no reference to Mr. Justice Fry's observations as to the “ reasonable time" within which a right to rescind a building contract on the ground
phrase, “due on these presents," is better than “due under these of delay must be exercieed. These, however, are very small matters. In
presents," appearing in the preceding form ; and still less how it is better general we think the digest of the cases has been well and carefully
than “due ... upon the security of these presents," appearing iu the executed, Part 2 contains precedents of contracts to build, of agreements
form before that ; nor is it usually thought desirable to have in the same for building leases, of building leases, mortgages, and other forms relating
page several different phrases, even if they are all equally good, for exto building matters. It is suficient to say that the precedents of agroe.
pressing the same thing. ments for building leases follow, in their general structure, the excellent forms in Davidson. The precedents of building contracts seem also to
COMPENSATION. be well framed and complete. We may, however, draw the author's THE LAW OF COMPENSATION UNL TR TH8 LANDS CLAUSES, RAILWAY CLAUSES attention to the form of contract adopted by Sir E. Beckett, and con CONSOLIDATION ACTS, THE PUBLIC HEALTH Aot, 1875, THE ARTIZANS AND tained in a little book published by him. We have kuown a modification LABOURERS' DWELLINGS IMPROVEMENT ACT, 1875, AND OTHER ACTS, WITH of this form adopted with very satisfaotory results. Part 3 of the book A FULL COLLECTION OP HORMS AND PRECEDENTS. By EræB LLOYP, dentalpe the statutos relating to building, and is followed by a glosgary Barrister-at-Law FIFTH EDITION. Stevens & Haynes,
The profession has sufficiently indicated the estimation in which this (9) The words of the 65th section being “any person beneficially on. work is held, and it is perhaps superfluous to add anything to the titled in right of the term;" there can be no doubt that an equitable praise we have bestowed on former editions of this work as a useful tenant for life is such a person. treatise on a branch of law of considerable importance and difficulty, but
FREDERICK PRIDEAUX. we may say, as the result of our investigation of the present edition, that
JOHN WHITCOMBE, we think the author is justified in his statement that great care and Lincoln's-inn, May 2. attention have been expended in its preparation. Defects in the [We reply that (1) Mr. Wolstenholme obviously would not recommend statement of, and in references to, cases have been corrected, and the the exclusion of the undertaking for safe custody if he wore satisfied recent decisions have been diligently collected and, in general, very that its effect is precisely equivalent to the covenants by trustees formerly accurately stated; we may point out, however, that the important fact adopted, and no one is better able to judge on this matter. that the married woman was entitled absolutely for her separate use has
(2) We are glad to find that our correspondents have now remedied the apparently been dropped out of the statement on p. 10 of the effect of
omission of forms for excluding tho power of lecsing to which we drew Peters v. Lewes, &c., Railway Company (29 W. R. 874). The work is l attention. eminently a practical one, and is of great value to practitioners who (31 On this point we need only call our correspondents' attention to have to deal with compensation cases.
the opinion of Mr. Wolstenholmė, at p. 130 of his first edition and p. 157 of his second edition, where, to the form of agreement for mortgage to continue for a time certain, he appends an express proviso that
the principal money shall, for the purposes of the Act, be deemed to CORRESPONDENCE.
becomo due on the day on which such principal money is covenanted to be paid ; and adds in å note, " This clause seems required to prevent any
question as to the date when the statutory powers of sale, &c., arise." PRIDEAUX'S CONVEYANCING.
(4) If the words "heirs and assigns” might be omitted, then they are [To the Editor of the Solicitors' Journal.]
surplusage. We did not say they were incorrect, but that their insertion Sir,We have read your review of the new edition of this work, and
was inconsistent with the rule, followed elsewhere in the precedents, of have noted a few points made by the writer in the way of adverse
adopting the Act. criticism, with respect to which we should be glad to be allowed a few
(5) and (6) As our authors frankly confess the surplusage in the prece. words in reply. The points are as follow :
dent we referred to, we also confess that we inadverteutly did them an
injustice in saying that the leseee is made to surrender “all other the (1) That we make a trustee give an undertaking for safe custody of
estate," &c. The words do not occur at the end of the parcels, but in deeds.
the next paragraph. Our correspondents, by the way, omit to explain (2) That in precedents of mortgage deeds we do not negative the leasing
why the lease is recited in this preoedent, instead of the surrender being power conferred by section 18 of the Act.
expressed to be read as an annex to the lease. (3) That in a mortgage containing a provision for continuing the loan
(0) Our correspondents do not accurately quote the provision of for a fixed period, and in a mortgage to secure an existing debt and
section 2. That section provides that “conveyance" includes" assurance future advances, we do not insert any express provision as to when the
... on & sale, mortgage, demise, or settlement of any property, mortgage money is to be considered to have become due for the purposes of the statutory power of sale.
or on any other dealing with or for any property," not, as our
correspondents say, “any assurance or any dealing with property." (4) That in one of the precedents we add the words "his heirs and
“Surrender of a lease" is not specified; is it an assurance on a assigus ” after the name of the covenantee, although it is unnecessary.
dealing ejusdem generis with those specified ? The doubt appears to us (5) That in an assignment of letters patent, the vendor is made to to be sufficient to call for the insertion of express covenants for right to assign as beneficial owner and also to enter into express covenants for surrender and further assurance. title, which is surplusage.
(8) We may remind our correspondents that misprints of this kind in (6) That in a surrender of a lease we make the lessee surrender all his a book of prece
se Wo Wako ve lessee surrender all his a book of precedents are serious matters. The mistako wo polated out estate.
does not appear to be calculated to doceive no one. (7) That the definition of a conveyance in section 2 may not include
(9) Our correspondents affirm that un equitable tenant for life is a a surrender of a lease, in which case express covenants for titlo would be person beneficially entitled in right of the term;" but they unfortunnecessary.
ately omit to give any reasons for their opinion. We have on previous (8) That in form 3 of mortgage we use the expression “the aforesaid
occasions alleged reasons for doubting this opinion. -Ed. S. J.] power" when there is no " aforesaid power."
(9) That it ought to have been explained how an equitable tenant for life is “a person entitled in right of the term " under section 65 of the Act. We reply as follows:
CASES OF THE WEEK. (1) This is done advisedly. Before the Act it was the practice to make a trustee covenant (inter alia) for safe custody, subject to the
SOLICITOR-POWER TO BIND CLIENT-FRAUD-APPEAL-LEAVE TO WITH. qualification that his liability should continue so long only as he holds
DRAW DEFENCE AND PUT IN NEW DEFexcE-ORD. 58, R, 5.-In a case of the documents. This is the precise effect of an undertaking for safe
Williams v, Preston, before the Court of Appeal on the 27th ult., & question custody under the Act, and, with much deference to Mr. Wolstenholme,
arose as to the extent of the authority of a solicitor to bind his client. The who seems to take a different view, we are unable to see why a trustee's
action was brought to enforce the performance of an alleged agreement by a
married woman to give the plaintiff a mortgage or charge upon separate estate liability since the Act should not be made co-extensive with what it was
belonging to ber as security for moneys advanced to ber by ihe plaintiff. Tbe before.
plaintiff, by his statement of claim, alleged that the moneys bad been advanced (2) We do not agree with your reviewer that the leasing power ought by him on the application of the married woman's solicitor, who was her duly to be negatived, as a matter of course, in every case, although there are authorized agent for the purpose. The action was defended by the solicitor on many cases in whicb, no doubt, this should be done. Forms for this bebalf of the married woman by her instructions, and be delivered a statement purpose (though omitted from the first copies of the new edition) will be
of defence in her name which, in effect, admitted the plaintiff's case. The found in the later ones.
plaintiff then moved for judgment on the admissions in the pleadings. No (3) The time when the mortgage money becomes due clearly appears
one appeared on behalf of the married woman on the hearing of the motion,
and judgment was given by Jessel, M.R., opon an affidavit of service of the on the face of the deed in both the cases put.
notice of motion on her declaring the plaintiff entitled to the mortgage wbich (4) The words “his heirs and assigus " might, no doubt, be omitted, he claimed. This was in June, 1881. In July, 1881, the solicitor absconded. but they are not incorrect. The precedent is expressed to be given for The married woman afterwards appealed from the judgment, and by ber the benefit of those who do not wish to adopt the Act in all respects.
notice of appeal she also asked that she might be at liberty to withdraw her (5) Some surplusage hero is admitted.
statement of defence, and to deliyer a fresh defence, and to adduce such
evidence against the plaintiff's claim as she might be advised. She filed an (6) The lessee is not in this precedent made to surrender "all his
affidavit in which she said that the defence which the solicitor had delivered estate, &c." The words "and all other his estate, if any, &c.," occur
on ber behalf was untrue, and that he had delivered it fraudulently, and that in a subsequent part of the precedent, and their insertion is quite con. she had never authorized him to borrow money from the plaintiff, and had sistent with the omission of the “ all the estate" clause at the end of never received the money alleged to bave been borrowed, and that she knew the parcels in the precedents generally.
nothing about the judgment until after the solicitor had absconded. It was (7) It is clear that the term "conveyance" includes a surrender, as the
urged on bebalf of the plaintiff that, even if the fraud alleged by the defend. 2nd section provides that “conveyance” shall include any assurance or
apt had been committed by the solicitor, still sbe, having employed him as her pny dealing with property.
solicitor in the action, was bound by the admissions which he had made on
her behalf, and that her only remedy was by means of an action for damages (8) The “aforesaid power of sale" is a misprint for the “ statutory
against him. The court (Lord COLERIDGE, C.J., and LINDLEY and HOLKER, power of <ale." The slight mistake is an obvious one and could deceive LJJ.), however, held that they bad jurisdiction to grant the application, and po ono,
that it ought to be granted if the defendant skyld succeed in proving her
allegations, and they ordered the application to stand over for the attendance costs of the deed, to divide the proceeds of sale among the creditors rateably, of witnesses, -SOLICITORS, E, I, Lewis ; Wolferstan, Avery, & Jennings. and that this was, in effect, a mortgage to the trustee to secure his debt. In
any event the deed would operate for this purpose, and, therefore, Fry, J.,
held that it must operate entirely. Another question was whether the reAPPEAL-DISMISSAL FOR DEFAULT OF APPELLANT TO GIVE SECURITY FOR versionary interest had passed to the assignee in bankruptcy of the husband, Costs-FORM OF ORDER.-In a case of Harris v. Fleming, before the Court of the bankruptcy (which took place under the Bankruptcy Act, 1861) having Appeal on the 3rd inst., a question was raised as to the proper form of order been subsequent to the execution of the deed, on the ground that it was in the when an appeal is dismissed in consequence of the failure of the appellant to order and disposition of the husband as reputed owner, because no notice had comply within a reasonable time with an order that he should give security for been given by the trustee of the creditors' deed to the trustees of the trust the costs of the appeal. The form given in Seton on Decrees (4th ed., p. 1614) fand." The evidence was not satisfactory on this point. But Fry, J., said is an absolute dismissal of the appeal, while the form of dismissal of an action that it was the duty of the assignee in the bankruptcy to complete his title to in the High Court for default of the plaintiff to give security for costs is the fund by obtaining, as provided by section 125 of the Bankruptcy Act of (pp. 1641-2) only a dismissal for want of prosecution. In the present case 1849, an order from the Court of Bankruptcy for the sale of the wife's the registrar had drawn up the order dismissing the appeal absolutely in interest for the benefit of the creditors under the bankruptcy. No such order accordance with the form in Seton. The appellant moved to vary the minutes, had been obtained, and until it had been obtained the assignee could not claim and it was urged that the form in Seton was wrong, and that the order ought the fund. If he did not succeed in obtaining the order, the trustee under the to show that the dismissal of the appeal was, not on the merits, but only for creditors' deed would have the better title. His lordship gave the assignee want of prosecution. The appellant, it was said, would be entitled, if he six weeks to enable him to obtain the order from the Court of Bankruptcy. should be able to give the security before the expiration of the time limited A further question arose as to the Statute of Limitations. For this purpose it by the rules for appealing, to present a fresh appeal, and an order absolutely is necessary to state the facts more fully. The trust was created by a settlement dismissing the appeal would be an obstacle in the way of his exercising this in 1835, and under it the trust fund was limited on trust to pay the income right. The court (JESSEL, M.K., and LINDLEY and HOLKER, L.JJ.) held to a mother during her life, for her separate use, and after her death to pay that the order was in the right form, and, without absolutely deciding the the income to the father during his life, and after his death the fund was to point, inclined to the opinion that the appellant would not be entitled to bring be divided in equal shares among their five children. In 1849 the fund had a fresh appeal.-SOLICITORS, Clarke, Rawlins, f. Clarke.
been invested, partly in the purchase of some leasehold property, and partly on a mortgage of other leasehold property. In June, 1849, all the persons interested
in the fund executed a deed sanctioning this mode of investment, and giving SOLICITOR-COSTS_TAXATION_COMMON ORDER-RETENTION OF Costs
the trustees a power of sale and re-investment. In 1854 one of the daughters AND PAYMENT OF BALANCE TO CLIENT-6 & 7 VICT. c. 73, s. 41.-On the 3rd
d was about to marry the bankrupt, and D., one of the trustees of the settleinst., the Court of Appeal (JESSEL, M.R., and LINDLEY and HOLKER, L.JJ.),
ment, agreed to lend her a sum of £300. To secure the repayment of this sum, reversed the decision of Chitty, J., in a case of In re Angove (ante, p. 314). with interest. a deed was executed by which the father and mother, the The question was whether the common order to tax a solicitor's bill of costs
daughter (with the assent of her intended husband), and one of her sisters could be obtained, and this depended on the question whether the bill must
assigned to D. their respective interests in the trust fund by way of mortgage. be taken to have been paid by the client. On the 30th of May, 1881, the The deed contained a declaration that. as between the assigning parties, the solicitor delivered to the client his bill of costs, amounting to £100 98. 73., £300 and the interest thereon should be primarily chargeable on the share in and on the next day he delivered to the client & cash account, which, after the trust fund of the daughter who was then about to marry. On April 18, deducting the amount of the bill, showed a balance of £1 18s. 1d. to the credit
1854, the marriage took place. On April 26, 1861, the creditors' deed was of the client. On the 24th of November, 1881, the client called at the
executed. On April 30, 1861, the wife died. On January 23, 1862, the solicitor's office and requested payment of the balance due to him, which he
mother died. During her life the interest on the £300 was paid by ber, it said was £1 168. The solicitor did not remember the exact amount, and, being having been from time to time deducted by D. from her income. In December, in a hurry, did not look at his papers, but gave the client a cheque for
1862, some of the leasehold property on which the trust fund was invested was £1 163. On the 23rd of February, 1882, the client obtained the common
sold, and out of the proceeds of sale the £300, and all interest then due on it, order to tax the solicitor's bill. The solicitor applied to discharge this order,
was paid to the mortgagee, and on December 23, 1862, he assigned the morton the ground that the receipt by the client of the £1 168. as the balance of
gage debt to the trustees of the settlement upon the trusts of the settlement. the cash account amounted in law to payment of the solicitor's bill. Chitty,
On June 2, 1868, the adjudication of bankruptcy was made. On March 12, J., refused to discharge the order. He said that in law a payment of £1 16s.
1877, the father died. During the period of bis tenancy for life under the settlewas not a payment of £1 189. 1d. He was of opinion that, if the solicitor
ment–i.e., from the death of the mother until his own death-he in effect paid intended by the payment which he made to the client to settle finally all
the interest on the mortgage debt of £300; or, in other words, no interest on accounts between himself and the client, he ought to bave drawn the client's
it was paid to him or to the trustees of the settlement, and his income as attention to this at the time of payment, in order that the client might have tenant for life under the settlement was to that extent diminished, In 1879 an opportunity of having the bill of costs at once taxed, if he wished that this the trustees of the settlement paid into court the share of the bank. should be done. JESSEL, M.R., said that the only question was whether the rupt's wife in the trust fund, less the £300. The fund in court was claimed bill had been paid. So far as he knew, there was no difference between the by the assignee in the bankruptoy, and by the trustee under the creditors' payment of a solicitor's bill and the payment of any other bill, such as a deed, and a petition was presented by the assignee. The executrix of the father tradesman's bill. Did the client assent to and settle the cash account? If he also claimed to be paid out of the fund in court the interest on the £300 did, this was equivalent to payment of the bill of costs. The client's demand which he had paid during his tenancy for life. It was objected that this claim, of the balance of the cash account as such, and the acceptance by him of the
or the greater part of it, was barred by the Statute of Limitations, FRY, J., £1 16s. as such, had the same effect, as showing that he accepted the account, said that as one of the trustees of the settlement was a party to the deed of as if the whole balance had been paid to him by the solicitor. If the balance 1854. those trustees must be taken to have had notice of that deed. At any had been £100, and he had said to the solicitor, Pay me half the balance of
rate they had notice of it by means of the deed of the 23rd of December, £100, that would have amounted to an acceptance of the account, and, there. I 1862. The result was that they became trustees of the share of the bankrupt's fore, to payment of the bill. The bill, therefore, having been paid, the wife on the terms of the deed of 1854, and one of those terms was that out of common order to tax could not be obtained. LINDLEY, L.J., said that it did that sbare whatever should have been paid to the mortgagee by the other not follow that, because the balance had not been paid to the client, the bill
assigning parties should be repaid to them. That trust was still subsisting, it had not been paid by him. If two people met together and settled an account had been in no way extinguished. Consequently, the fund which was paid between them, by setting off one bill against another, that would be payment into court was paid in on that trust. The Statute of Limitations did not of the bills. It would be a good plea of payment in an action at law. apply, and the executrix of the father was entitled to be paid out of the fund HOLKER, L.J., concurred.-SOLICITORS, Angove ; Emanuel f. Simonds,
in court the interest on the £300 which he had paid, in priority to any other
claim.-SOLICITORS, W. W. Aldridge; H, L. Pemberton; 0. E. Dawson; HUSBAND AND WIFE-WIFE'S CHOSE IN ACTION-REDUCTION INTO Pos.
F. Woodhouse. SESSION—" PROPERTY” – CREDITORS' DEED-NON-COMMUNICATION-BANKRUPTCY-REPUTED OWNERSHIP-ORDER AND DISPOSITION—TRUST FUND WILL-CONSTRUCTION-SPECIFIC, OR RESIDUARY LEGACY,-06 the 3rd NOTICE TO TRUSTEE-BANKRUPTCY ACT, 1849, 8. 125-STATUTE OF LIMI. inst. the Court of Appeal (JESSEL, M. R., and LINDLEY and HOLKER, L.JJ.) TATIONS—TRUST-OLAIM BY ONE CESTUI QUB TRUST AGAINST ANOTHER. — reversed the decision of Fry, J., in a eage of Broadbent v. Barrow (30 W. R. In a case of In re Biaggi, before Fry, J., on the 29th ult., a question arose 483, ante, p. 282). The question was whether a legacy was specific, general, as to the nature of the interest of a husband in a chose in action of his wife, or résiduary. A testator bequeathed a number of pecuniary legacies, and which he has not reduced into possession-whether that interest is a mere then he bequeathed all his personal estate of which he should die possessed, possibility, or whether it will pass by a deed under the description of " property" and which should not consist of money or securities for money, to R. absoof the husband. A wife was absolutely entitled, subject to the life estates of her lutely. And be gave and devised all the rest, residue, and remainder of his mother and her father, to a share of & trust fand. Her husband executed a estate, both real and personal, to trustees upon certain trusts. The personal deed for the benefit of his creditors, by which he assigned to a trustee a lease. estate was insufficient for the payment of the pecuniary legacies in full. hold bouse and his furniture, and .. all other personal estate and interest." Fry, J., held that the gift to Rwas specific. He said that he accepted the Fry, J., held that the reversionary chose in action of the wife passed by the definition of a specific legaoy given by Jessel, M.R., in Bothamley v. Sherson deed, subject to the condition that it must be reduced into possession by the (23 W. R. 848, L. R. 20 Eq. 304)-viz., that it must be (1) a gift of part of husband. Subject to the performance of that condition, his lordship was of the testator's property itself, and (2) á gift of a part emphatically as disopinion that the busband's interest in the chose in action was “ property," tinguished from the whole. Fry, J., said that the gift to R. fulfilled both and that it passed by an assignment of “ property."
| those conditions. JESSEL, M.R., said that the will was very obscure. There A further question arose whether the creditors' deed had been in any way were, however, some principles of law which would enable the court to come acted on, or communicated to the creditors, and, whether, therefore, it had had to a conclusion as to the proper meaning of the words wbich the testator ang operation at all. There was very little evidence on the point. But FRY, J., had used, though his lordship had not the slightest idea what his real meaning held that this was immaterial, on the ground that the assignment was to one of war. It was a curious thing that Fry, J., bad considered that he was follow, the creditors on trust for sale, and, after paying a debt due to himself, and the ing Bothamley y. Sherson, and bad based his decision upon it The Master of the Rolls thought that he could not in that cage have expressed himself was made under Rules of Court, 1875, ord. 50, r. 4, for the continuation of an with sofficient clearness, for the meaning which Fry, J., bad attributed to his action between the original parties thereto and the executor of the will of a words was diametrically opposed to that which he bimself had attributed to deceased accounting party. It was stated that the proposed new party was them. He had said in Bothamley v. Sherson tbat a specific legacy must be a resident in Ireland, and had proved the will in Dublin, and that under these bequest of part of the testator's property, and a bequest of a part emphati. circumstances a petition of course had been presented at the Rolls, but the cally as distinguished from the whole. It must not be a gift of the whole of secretary had declined to make the order. NORTH, J., said that he saw no his personal estate, or of the totality of the general residue efter having difficulty in making the order asked for, but required an affidavit to be filed, given legacies out of it. He did not think that the gift to R. satisfied the showing the circumstances under which the order was applied for, and gave second condition which he there laid down. He had said that it must be a gift leave for serviee of the order in Ireland.-SOLICITORS, Grover & Humphreys. of a severed or distinguished part of the testator's property. He intended to 8&V that the whole of a general residue could not be given specifically, although a specific legacy might have been given out of it. A general legacy
SOLICITORS' CASES. was not given out of it, and it followed that, if you took something out of it which was not given at all, still it could not be a specific
HIGH COURT OF JUSTICE.- QUEEN'S BENCH DIVIBION. legacy. In the present case the important question (whether the legacy to R. (Sittings in Banc before Lord COLERIDGE, C.J., and GROVE, J.) was called specific or not) was, were the general legacies to be paid out of it ?
April 29,-Ex parte the Incorporated Law Society, Re A Surgeon. The testator had directed his debts to be paid by his executors. "What was the
Willis, Q.O. .(with whom was Murray), moved the court for a role legal meaning of that? It amounted to a direction to his execators to pay
nisi calling upon the medical man in question to show cause why an his debts out of his personal estate. Then there was a gift of pecuniary
attachment should not issue against him for contempt of court in legacies. That was, in law, a direction to his executors to pay the legacies out of his personal estate. The mere gift of general legacies carried that
baring, though an unqualified person, issued & writ and taken other steps direction with it.
in an action of Roberts v. Smith. Roberts, a working man, bad been em. Then came the gift to R., which could not be specific, for it was not a gift of a distinguished part of the personal estate. The only part
ployed by Smith to do some repairs to some sbuttere, and while so employed which was distinguished was that which was excepted out of the gifts. Was
he had sustained personal injuries whick, as he alleged, had been due to the
carelessness of a third person, who was in the service of Smith. Roberts had tbere anything to except the general personal estate from its ordinary liability to pay the general pecuniary legacies? It was said that the sabsequent gift of
been attended by the person against whom the present application was made, residue had that effect. No doubt the word "residue" would carry all the
and who was stated to carry on business as a chemist at one place and practice
as a surgeon at another. The latter had induced a solicitor with whom he testator's money and securities for money, but would it carry anything else ? It would do so by law, but not by the meaning of the testator's words. By
was acquainted to make an application to Saith on Roberts's bebalf for some the meaning of his words it would carry his money and securities for money,
compensation. The solicitor appeared to have heard nothing more of the and nothing else. What he was really dealing with by the gift of the rest,
matter for some weeke, during wbich, however, a writ had been issued in his residue, and remaioder of his personal estate was that which was excepted
name, and several letters purporting to have been written by him gent to the from the gift to R. Did be mean that the “money and securities for money"
| solicitors acting for Smith, which were dated some from one place and some was to be the only fund applicable to the payment of the pecuniary legacies?
| from another. The solicitor, hearing of this by a mere accident, at once er. The general law was that, in order to exonerate the general personal
plained the matter to the solicitors acting for Smith, and they took out &
Bummons to stay further proceedings in the action, on the ground that the estate from the payment of pecuniary legacies, there must be express
name of the solicitor supposed to be acting for Roberts had been used in the words, or something necessarily leading to that result. It was the law, not
writ, &c., without his authority. At the hearing of that summons an affidavit the use of the word “residoe," which rendered the property included in the gift of residue liable to pay the legacies, and there was nothing to exonerate
sworn by the person against whom the present application was made was veed, the personal estate comprised in the gift to R. from the payment of the legacies,
| in which it was stated that in accordance with an arrangement made between though there was a preference of the
| bimself (the deponent) and the solicitor, the name of the latter bad been
money and securities for money' as the fund for that porpose. Not only was the gift to R. not specific, but R.
| painted up at one of his (deponent's) places of business. It was sought to could only take after payment of the pecuniary legacies, if the “money and
make out that in this way the use by bim of the name of the solicitor had not Becurities for money" were not sufficient to pay them.
been unauthorized; but the latter stated that he had caused his name to be
In the course of the argument bis lordship expressed his disapproval of tbe decision of Maling,
painted out there at once, and that the writ in the action had been issued with. V.O., in Pocock v. Riley (19 W. R. 869, L. R. 12 Eq. 175), which he said bad
ont bis knowledge. teen approved by no one. LINDLEY, L.J., was unable to agree with Fry, J.,
The Court granted the application.--Times. that the gift to R. Was specific. He did not profess to define with accuracy what & specific legaoy was. He thought it was sufficient to take as a type, though not as an exbaustive definition, the definition given in Williams on Executors (8th ed., vol. 2, p. 1163), "a bequest of a specified part of a testa. tor's estate which is distinguished from all others of the same kind." It did not follow that, because a legacy might fluctuate, it was not specific. The gift to R. did not answer this definition of a specific legacy. It was a gift of general personal estate, not of a part sofficiently defined. The substantial
CENTRAL OFFICE, question was, In what order were the assets to be administered ? A number Office RULES SETTLED BY THE Practice MASTERS, 1880, 1881, 1882. of legacies were given, which, prima facie, were to be paid out of the personal
Documents to be filed in the Writ and Appearance and Summons and Order estate. Prima facie all the legacies must be paid out of the residue, but, if
Departments. that was not sufficient, they must be paid out of the other personal estate. They could be paid out of nothing else. HOLKER, L.J., concurred.
Originating sommonses issaed from Chancery Chambers. SOLICITORS, S. Copping ; Young, Jones, Roberts, d: Hale; Lawford, Water
Petitions of right. house, f Lawford.
Affidavits of service.
Schemes of arrangement under Railway Abandonment Aot. CHARITY-BUILDING REGISTERED AS PLACE OF MEETING FOR RELIGIOUS Pleadings left on entering judgment (order xli. rale 1). WORSHIP CHARITABLE TRUSTS Act, 1853 (16 & 17 Vict. c. 137), ss. 17, Pleadings and otber documents filed under order xix, ralo 6, in default 62_CONSENT OF CAARITY COMMISSIONERS.-In a case of Glen v. Gregg, before of appearance. Kay, J., on the 28th and 29th ult., the question arose as to the necessity Writs and returns to write, ordere, &o. of the consent of the Charity Commissioners to an action under the All documents required by roles or orders of court to be filed, such as following circumstances :- The action was brought by some of the trustees of
warrants of attorney, and cognovits on sigoing judgments (role 25, of Hilary, a deed, whereby land was conveyed upon trusts for a church for service
1853), orders for assessment of damages and masters findings thereon (role according to the principles of the Reformed Episcopal Church, as stated in a
171, of Hilary, 1853), algo satisfaction pieces aod orders to satisfy, strike declaration of their creed made at a general council of their body. The defendants were the minister of the church, who, it was stated, had seceded from the
out, or amend any judgment or proceeding, or directing any aot to be done general body, and started a sect of his own, and the remaining trustees. The
in the office (except Chancery orders and orders of court in Queen's Benob
Division). [A copy of the order marked that the original was prodooed relief asked was an injunction to restrain the minister from performing service may be taken at the disoretion of the officer in cages in which the original in the church, and to restrain the defendant trustees from allowing him to do 80, and, so far as was necessary, administration of the trusts of the deed. The
is required to be retained by the parties.] counsel for the defendants took the preliminary objection that the consent of
All pleadings to be entered in the caugo-books are to be opened and the Charity Commissioners to this action had not been obtained. KAY, J.,
stamped on the day of filing, with the date geal at the top of the front said that this, being an action for administration, and a declaration that,
page, and returned to the General Filing Department on Monday morning according to the trusts of a deed, the minister bad no right to hold his office,
in each week, was within section 17 of the Charitable Trusts Act, 1853, which requires the
Copies writs filed. consent of the Charity Commissioners to a proceeding being commenced
Præcipes for writs of exeontion. relating to a charity, or the estate or property thereof. He, therefore, ordered
Præcipes for sabpænas and miscellaneous writs. the action to stand over for their consent to be obtained. --SOLICITORS, A. D.
Lower egalo certificates.
All these should be sent to the General Filing Department when more
NEW ORDERS, &c.
Cause Book, Distinctive Marks, and Indexes.
Writs of summons issued before the Judicature Acts came into forco may Actions and matters in the title of which a limited company is first must be renewed without an order. be indexed under the first letter of the first word or initial.
A female plaintiff must be described as “spinster,” “ married woman," or Courtesy titles of oldest sons of Peers are not to govern the distinctive
“ widow," and it an infant, as an infant. mark whiob is to follow the surname, viz., “Campbell ” and not "Marquis
Where an inlapt or married woman is plaintiff the authority of the next of Lorne."
friend (duly attested) must be filed before the writ of summons can be In cases, such as Magor and Corporation of, &o., the initial letter of the issued. city or borongh should govern the distinotive mark.
Substituted Service. Affidavit of Service. Owners of ships by name of ship.
Unless the order shall otherwise direct, a copy of the order and of the Overseers of parishes by names of parish.
writ shall be deemed to have been served on the day following the day on Names in which "de" ocoors as part of the surname, or is preceded which a prepaid letter oontaining such copy shall have been posted. only by Christian names, should be indexed under “ D." Foreign oompanies should be indexed under the initial letter of the first
Subpænas. word in their name, e.g., Banco de Lima ander "B," Société d'Aolimatiga- ! Subronas remain in force only till the end of the sitting or assize for tion, “S."
which they were issued. A new writ must afterwards be issgued or the Foreign titles should be indexed under tbe initial letter of the proper or former writ may be (at the option of the parties) altered as to date and sitting, local name in the title, e.g., Comte de Paris under “P," Dao de Montebello or assiza, and re-iss ned as a new writ. onder “M."
The date of return in the writ and præcipe may, before service, be The Christian and surnames of all parties to an action should be entered | amended without the direction of a master, and without fee, provided the in foll in the oanse book.
amended date bo within the sitting or assize for which the subpoena Parties are not to be allowed to see the cause book oplegs by express leave issued. obtained from a master or an order by a jodge.
A subpoena in an interpleader issue should be headed in the title of the All searobes in the cause book for writs of buinmons or otherwise are to original action, and in the title of the interpleader issue, and should be be made by the olerks in the Central Office, and the result oommunioated to applied for in, and issued out of, the room in whloh the writ of summons tbe party applying.
in the original action was issued. When a certificate is given, and no inspeotion of a præcipe is required, only one fee of 18. to be taken (or 49. if higher scale).
Removal by appearance to London of Actions commenced in Distriot A separate index is to be kept of writs in administration actions and
Regislries. of administration summonses, which index the publio may searoh witbout A fresh London distinctive mark to be given. fee.
No separate district registry cause book to be kept. Separate books are to be kept for entering returns to writs of exeoution,
No letter need be sent to the district registrar. index to lower scale certificates in Chancery matters not actions, and return Writs of summons issued out of a district registry cannot be amended by books and debt attachment book.
order or fiat of master unless the action has been removed to London by No other books to be kept for entries except the cause books (and desk book
appearance or otherwise, for facilitating reference). The judgment books may be kept in the cause 'No writ issued out of a district registry can be amended in the Central book room with the cause books, or in a separate room.
Office unless the duplicate filed in the district registry has been previously
received in the Central Office. Writs of Summons, Appearances, and Amendments.
If it becomes necessary to send to London (for amendment or otherwise) Copies of writs of summons should be signed with the name of the solicitor the copy writ filed in the district registry, authority may be given to send or solicitors' clerks suing them out as under :
the copy writ to the Central Office by sealing a daplicate of the præcipe for C.D. and Co.
appearance, which shall be transmitted to the district registrar by the or A.B.
When the settlement comprises more than one sum, and the sums are in the plaiotiff may be advised will not justify an alteration that strikes out the the shares or securities of different companles, a separate affidavit and name of any plaintiff or defendant, or makes a person out of the jurisdiction a
notice should be made for each company, and the affidavit should be that party.
the funds comprise " amongst others" the sum of, &o. [specifying the sum In all the divisions an amendment of a writ of summons may be made by
in the books of the one company), and a stamp of 10s. will be required for leave of a master (on payment of fee) before service. A plaintiff can be struck each separate notice. ont oply by speciaÌ leave given in the order to amend ; & defendant, by
If there are more sums than one, but all in the books of the Bank of special leave, or on the writton statement (to be âled) of the plaintiff's solicitors England, or in the books of any one company, one affidavit and notice will that a notice of discontinuance under order xxiii. has been duly given.
be sufficient for all the sums. Io Obancory actions an amendment to a writ of summons pursuant to an
In actions not specifically assigned to the Chancery Division by the order of court or judge, may be made either on an undertaking to get the
Judicature Act, 1873, s. 34 (i.e., so called common law actions brought in order drawn up, or on a separate memorandum or certificate being left for
the Chancery Division), no certificate of lower scale shall be given out till filiog, signed or initialed by the judge or registrar, showing the order to have
after appearance. In the cause books such actions shall be distinguished by been made.
the letters L.S. In an information, where there is no relator, the Attorney-General's signa.
When deposited documents, or documents on the file, are ordered to be ture on the writ is not required; but where there is a relator (whether a 'per.
delivered to a solioitor, on bis undertaking to return them, he must sigo a Bon or body corporate) the original writ (not the copy filed) must be signed by receipt and undertaking to retorn (which may be indorsed on the order), the Attorney-General, and if any amendment be made, it must be authorized and leave the order and indorsement at the Central Office to be returned to by his signature on the original writ or draft.
bim on his bringing back the documents. The signatare of the solicitor must In entering appearances a note should be made in the cause books “ State. | be witnessed by big olerk, or by someone known to the officer delivering out mentfof claim required" or "Statement of claim not required,” and in cases the documente. where the action is for recovery of land, and the defence is limited, a furtber Dote to that effect should be added.
Pleadings and Documents filed in Default. If no time is specified in an order to amend, the amendment must be made None of these documents will be placed in the bandles containing the within 14 days.
writs of summons and pleadings filed on entering judgment, but will be No writs are to be igsued in Probate Division causes unless on a certificate made up into two sets of separate bandles. that the affidavit required by order v., rule 10, has been filed.
The first containing all statements of olaim filed in default. Where appearances are entered in the Central Office in Probate and The second containing soumonser, warrants to tax, noticer, and miscellaAdmiralty Division actions, a list or copy of the appearances entered shall each neons documents. day be addressed and sent to the prinoipal registrars of the Probato and! All tbese documents must have the date of Aling and the name of the Admiralty Divisions. Such list to be made out at the close of the day by one defendant against whom they were filed written on them, and be entered in of the junior clerks in tbe writ, &c., department.
the ca080 books under the head of pleadinge, each encry to show the date If a soliciior has caused an appearance to be entered by mistake, the mis. of filing, nature of document, and name of defendant against wborn they are take may be rectified with the consent in writing of the solicitor for the Gled, plaintiffe, and on the fiat (on tbe production of such consent) of a practice None of these documents will (for the present) be delivered out without master to be given on a precipe with a 28. 6d. (search) stamp.
an order, bot any defendant against whom documents have been filed may, A defendant in person may change bis address for service (without order after appearance, inspect the same without fee. to change address) by leave of master, but must forth with give notice to the other side.
As to filing generally. In the case of infants the appearance is accepted without any authority or
In the Chanoery Division, judgments, orders, notices of motion for altaob. order; an order being obtained by the defendant's solicitor alter the appear.
ment, and other documents requiring personal service, cannot be filed in ance bas been entered.
default of appearance without an order or leave of a master, and po pleadings In the case of a married woman, an order to defend separately must be
or other doouments can be filed under order xix, rgle 6, uologs an affidavit obtained before appearance is entered.
of service under order xiii,, rules 3 and 9, or an office copy thereof, be first If a writ of summons bas been lost the filed copy may, for the purpose of
produced to the officer. amendment, or for any ot!er purpose, be treated as a duplicate, but only by leave of a practice master, and on the party giving an undertaking to pro
Orders and Judgmente, Cgge the origio ai at the Central Office when found,
Whop paștion baro no rexo op their ordere ou the day of the hearlinge