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that he allows the prosecution to reply on the prisoner's address, just as attended to draw up the order and assist me with the papers, all I am if it were evidence.
entitled by law to charge my client is the miserable sum of 6s. 8d. It is I may add that Mr. Alfred Wills, Q.C., as recorder of Sheffield, has quite true I shall not charge so small a fee for my services, though the adopted the same practice.
fact remains that I am not entitled to charge more than the sum indiIt seems to me that the innovation which these learned persons have cated. In the chambers of the judges of the Chancery Division I should introduced is decidedly a wholesome one, and one which ought to be fol. have been allowed a guinea for my attendance, and with that fee I lowed. One advantage of it is that it is a compromise between the old should have been content. In addition there would have been the draw. idea of the prisoner's mouth being closed, which induces defending | ing up of the order, which would have also formed a further fee. counsel to talk such bunkum to the jury, and the new idea-a very In the interests of the public and of the suitors, it is of great impor. dangerous one-of administering an oath to, and cross-examining, him. tance that solicitors should be reasonably remunerated for their time and
W. S. S. | attention in attending at judges' chambers, no'matter to what Division of
the Supreme Court the case may be attached. These are, however, points LEGACIES TO LAWYERS' CLERKS.
with which the Incorporated Law Society, through their council or other[To the Editor of the Solicitors' Journal.]
wise, will have to deal, and I have no doubt from all I hear, they will be Sir, I see that the late Sir John Karslake has left his clerk £2,000 in
prepared and willing to suggest an acceptable remedy.
There is, of course, still ample room for improvement with regard to recognition of his long and faithful services.
business at judges' chambers, which, however, will never be made to It is always gratifying to read of such acts of liberality-they live in one's memory and act as a kind of spur. Might not eminent solicitors
work satisfactorily until it closely follows the practice which prevails in follow in the wake of eminent barristers in this thoughtful custom
the Chancery Division of the High Court. Desirable as the one-judge of
system may be from many points of view, it is of the essence thereof legacy-giving in return for long and meritorious services ? I can recall the following instances of liberality by eminent barristers
that the practice, from the commencement of the action to its terminato their clerks :-Mr. Justice Quain, £5,000; Mr. Justice Crowder,
tion, should be taken befure the judge to whom the case may at first have £3,000; Lord Justice Giffard, £1,000 ; Lord Justice Thesiger, £1,000 ;
been assigned. and I should much like to see similar instances of thoughtfulness by
I could say a great deal about the masters, and perhaps on a future eminent solicitors.
occasion, with your permission, I will do so. Some say that they have
AN OLD LIMB OF THE LAW. Lincoln's-inn, November 14.
become so inured to the practice of transacting business superficially .that they are absolutely unable to carry out any system different to that, notwithstanding its admitted evils, to which they have been so
long accustomed. This may be the case with some, but I am not JUDGES' CHAMBERS.
without the expectation that a few at least may be willing to realize that [To the Editor of the Solicitors' Journal.)
the interests committed to their charge are not so unimportant as their Sir,-So frequent and so just have been the complaints which have from method of dealing with thoso interests would sometimes justly lead one time to time been made respecting the conduct of business at judges'
to suppose. Certainly there is scarcely one who, in the taxation of costs, chambers, that you will probably be glad to insert the experience I have
has ever yet been able to take into adequate consideration anything but recently had before one of her Majesty's judges, as showing that in some the length of the document or the time occupied, without the slightest respects a great improvement has been made, though much still remains | reference to the skill and ability manifested in their preparation and in the to be done, which it is greatly to be desired that the contemplated conduct of the business, the bill of costs relating to which they are called meeting of the Incorporated Law Society will be the means of causing to upon to tax. be ultimately introduced.
With the powerful co-operation of your valuable journal in throwing I wish then to say that I had the pleasure to-day of attending before open your columns to the publication of suggestions from those who are Mr. Justice Watkin Williams, and am pleased to be able to record the
daily engaged in the active discharge of the duties of the profession, and painstaking and carefulness in which he considered the question sube with the results which I have some reason to suppose will be likely to mitted to him, and the patience which he displayed in grasping the facts, follow from the meeting to be held next Friday at the
follow from the meeting to be held next Friday at the Law Institution, which were somewhat complicated; which consideration at his lord
I do not doubt that if the members of the profession will just for once ship's hands has unquestionably prevented an appeal, as both my venture to rise to the dignity and influence of the position
venture to rise to the dignity and influence of the position which as a opponent and I were well satisfied with the treatment we received. The
body they unquestionably fill, all those defects in the administration of application was to set aside a judgment, and an order which had sub
justice which have been so long felt and acknowledged will speedily be sequently been founded thereon. There were five affidavits for his removed, and that solicitors, remunerated simply out of regard to the lordship's consideration, which were carefully considered, as well as the
nature and quality of the services rendered, will more readily assist in the observations made by my opponent and myself. It frequently happens
future, than they may have done in the past, to bring about those changes at chambers that the judges keep their eyes fixed on the summonses
and improvements which wisdom and experience may from time to time before them, and never think to look up and see by whom they are prove to be a necessity. addressed; thence it happens that some of them attach no more import.
I have no desire that anything but its proper value should be attached ance to the presence before them of the experienced solicitor than of the to what I have said, and therefore I subscribe myself mere office-boy who may be in the receipt of a few shillings per week; the
A PRACTISING SOLICITOR. latter, being necessarily less familiar with the rules of polite society, has no difficulty in enforcing his views or rather his conclusions, while the former, naturally hesitatingito be guilty of anything like rudeness, is less obtrusive, and frequently finds an order made without having had the
THE INTERPRETATION OF THE opportunity to set forth his views satisfactorily.
CONVEYANCING ACT. It is true that Mr. Justice Watkin Williams' judicial experience is somewhat recent, but I cannot help feeling that if some of his colleagues
The deep interest which is felt by the profession in the provisions would follow his example of patience and consideration, not only would
of this Act, and the keen discussion which the articles which have the profession be better satisfied, but, what is of far higher importance,
appeared in this journal have excited, have given rise to a flood of the interests of the public would be better served, and appeals would
correspondence. We are desirous that the case both for and against the consequently be less frequent. In his management of chamber business
provisions of the Act should be set forth, but we cannot occupy the Mr. Justice Watkin Williams has evidently been copying the example
whole of our columns with letters on this subject. We propose, thereset by the judges of the Chancery Division, who invariably listen with
fore, this week, to give the substance of the communications we have patience and fairness to the representations made to them when they sit received, with brief notes appended stating our own views on the points in chambers, and hence it frequently happens that in business of that description in the Chancery Division their lordships are either attended « C.” writes :by experienced managing clerks, or by the principals, with the best “I bave read with interest your articles on the above subjeot, and wish results to the suitor. There seems, however, no reason why chairs should to call your attention to a point as to the effeot of section 9, which is not not be provided, as in the chambers of the Chancery Division, for those
touched upon i: yonr article of the 12th inst. As the Act enacts that an who attend before the judge, instead of their having to lounge in an
* acknowledgmeet' and undertaking' bhall respectively gatisfy any uncomfortable and standing position over the high desk which separates
liability to give covenants for the production and safe custody of deeds, it them from the judge. Moreover, the judge's clerk should have special
appears to me that where property is sold in lots, with the usual condition directions not to admit more than two or three cases at a time before
as to covenant by tbe largest parohaser, then (apless it should be held that the judge, otherwise the judge is tempted to hurry the business before
such purchaser is not a person who retains' deeds within the meaning of him in order to attend to the cases which are waiting for hearing.
the section) he would, notwithstanding anything in the conditions, be
enabled by the Act to elect whether he would covenant in the ordinary way, Now, Sir, the summons to which I have referred was an important one,
or merely give an 'acknowledgment' or 'undertaking.'" and consequently, though assisted by an efficient clerk, I felt in the in
[This is an important point, which ought certainly to be brought to the terests of my client that I should appear in person; and having been kept
rson; and naving been kept | potice of our readers. ] some time waiting, and also before the judge, and time having been taken The same correspondent writes :up both in going from and returning to my office, and also my clerk having “ Referring to your editorial note on Mr. F. S. Reilly's letter, although
the habendum may not now qualify the general intendment of the premises,' ! [We do not know why our correspondent says that we “DON put" the casə would not the express statement in the habendum, that the lease was for so which we always did put; but we are glad that he now seems to see what we many years, amount to an expression of intention in the conveyance that the meant. He apparently does not see that bis attack upon our interpretation of wbole fee was not to pass ? It does not seem to matter in what part of the con. sub-section (3) involves a much more formidable attack upon sub-section (1). If verance the expression of intention is found.'
“the mortgages" in sub-section (3) must be confined to two only, one sought to Our correspondent is not quite accurate in these remarks. The Act says be redeemed and the other sought to be consolidated, we find ourselves obliged to potbing about "an intention in the conveyance that the whole fee was not to conclude, from the words of sub-section (1), "a mortgagor seeking to redeem rass." Whether (which is much more to the point) the habendum in a any one mortgage,” that, if he seeks to redeem two, even though both be properly drawn lease amounts to the expression of an intention to exclude made after the commencement of the Act, he will be left to the hardships of the operation of section 63, sub-section (1), was the very question we consolidation. It will follow that a mortgagor must in future bring as many suggested, without in any way deciding it.]
separate redemption actions as he has mortgages to redeem : thus repealing “ H.” writes :
(80 far) ord. 17, r. 1. We were driven to our interpretation because we did “ With regard to your inability to see anything in sub-section (1) of sec. | not wisb to father these anomalies upon the framers of the Act; and we tion 9. in any way to restrict the meaning of the word “pereon," or the must beg permission to leave the whole responsibility of the affiliation upon word “another," or the word “documents," or to connect the transaction our correspondent. with a sale or conveyance of land, or any other property,' or 'to restrict the Our correspondent then devotes more than thrice the game space to the documents to documents of title to land, or to restrict the occasions , ...
citation of cases opon a question connected with the suspension or extinction to sales or conveyances, or to restrict the relation subsisting between the of appurtenants, into which we do not think it necessary to enter--because parties to the relation of vendor and purchuser, or to any other definite the dispute upon this point between ourselves and the Act can be ettled by relation,' is there no significance in the Roman capitals, Sales and other a much shorter method. In his first letter our correspondent cited from our Transactions,' marking the second salient division of this •Conveyancing article a passage which contemplated not merely the suspension or extinction and Law of Property Act'? That division comprises sections 3 to 9, which of appurtenants in construction of law by unity of seisin, bat their manifest are thrown into six sub-divisions, the first five of whicb, at all events, and visible interruption and destruction in fact. Suppose the quasi-appurtenant indicate explicitly enough the transactions' to which they apply-piz., to be a right of way from one house through the garden of the next house to • sales' or 'conveyances, the term 'conveyance' including any assurance a public road; and that the owner of both houses, having contracted by bare made by deed on any dealing with or for any property,' and the term prop. open contract (for this was our hypothesis) to sell the first house, takes away erty,' including real and personal property. If section 9, which forms the the gate through which the right of way was enjoyed, blocks up the opening sixth sub-division, is silent as to the particular transactions to which it applies, with a brick wall, plants a promising quick-set hedge on both sides, and then may it not fairly be inferred that its scope is co-extensive with the executes the conveyance. Our correspondent will hardly assert that the right 'transactions' tbat are indicated in the other sub-divisions? If so, there is of way is under such circumstances "at the time of conveyance demised, DO restriction to documents of title to land, or to the relation of vendor and occupied, or enjoyed with " the first-mentioned house. We conceive that this purebaser, but there is to transactions involving the retention and pro. example alone suffices to jastify our distrust of the forms given in section 6 of duction of deeds in connection with 'sales' or conveyances,' and to the the Act.] definite relations subsisting between the parties thereto. And why should “ E. L. J. W." writes :this wide range of usefulness be regarded as a demerit ?"
“ You have not yet discussed in your articles on the Conveyancing Aot (We are at a loss to understand how the words “sales or other transac- section 8. In the first place, is the section applioable potwithstanding lions " can be thought to restrict the matters to which they refer to sales any stipulation to the contrary' contained in the contract of sale? The alone ; and if they import no such restriction, they seem to have no “sig section does not expressly say so; but it is couched in general terms, and nificance" in opposition to what we said, but to agree therewitb remarkably contains no saving of the rights of vendors to contraot themselves ont of' well.]
it. In the second place, wbat is the precise difference between his soli. “ H.” also writes : -"You disparage section 9 because it does not citor, as suob,' and 'some person appointed by him, wbo may, if he thinks contain a definition of undertaking' corresponding with the definition of | fit, be bis solicitor'? Does this mean that tbe person appointed by the acknowledgment,' but if you will calculate you will find that there would
vendor, although pot a solicitor, may, if the vendor thinks fit, be bis solicitor have been absolutely no gaic in brevity, as there could not be in clearnese, I pro hac vice?" while it would have been open to the objection that it gave co-ordinate
[We do not propose to comment on all the sections of the Conveyancing importance to an undertaking' instead of assigning it its natural place as
Act, and we do not think that the provision referred to by our correspondent nepally an appendage to an acknowledgment.'”
offers much difficulty of contraction. It can, we should think, only relate We cannot agree that there would have been no gain in clearness, and
to the rights of the purchaser in the absence of express stipulation. The we would remind our correspondent that brevity counts for notbing in
last part of the clause is awkwardly worded, but we apprehend that our drafting an Act of Parliament as compared with the importance of correspondent's interpretation is joonlar]. clearness.]
Lastly, “H." says :-“In the case you suppose of a vendor retaining deeds, and then handing them over to a pro forma mortgagee of the property retained, and refusing to disclose the name of the mortgagee, I apprehend that he migbt be visited with costs under sub-section (7). ... The Chancery Division may, I think, be trusted to prevent a person who has given a written
CASES OF THE WEEK. scknowledgment of the right of anotber to the production of documents from deliberately and dishonestly rendering such right nugatory in the ORDER IN CHAMBERS — TIME FOR APPEALING TO JUDGE-JUDICATURE ACT mander soggested; and, if necessary, to give a new meaning to the words 1873, s. 50-ORD. 58, R. 15-ACTION TO SET Aside CONTRACT FOR FRAUD*under the control of tbe person who retains' the documents."
PARTIES-AGENT.-In a case of Heatly v. Newton, before the Court of Appeal [Our correspondent should consider wherber these opinions might not more on tbe 15!h inst., the question arose within what time an application ought to properly bave been embodied in the letter of the law, instead of being left to be made to a judge of the Chancery Division in court to discharge an order be in ferred from the court's high moral tone.)
previously made by bimself in chambers. On the 23rd of June, Jessel, M.R., Our correspondent “G. C.” has written us another letter, dealing with two made an order in chambers, upon a summons taken out by some of the defend. separate points-(1) our interpretation of section 17, sub-section (3), of the ants. The order was not drawn up, passed, and, entered till the 14th of Conveyancing Act; and (2) the nature of quasi-appurtenanıs, which have been July. On the 18th of July the plaintiffs gave notice of a motion in court to suspended or extinguished by upity of seisin: a subject wbich is connected discharge the order. Jessel, M.R., refused the motion, on the ground that it with our remarks upon section 6. Both these points are treated by our corres. was his invariable rule that notices of motion to discharge orders made in his pondent at most un merciful length; but we will allow bim to state the first chambers must be given within twenty-one days from the date of the proin his own words:
nouncing the order, and not from the date of its being perfected, whether the “ As to section 17:-You now put the case of a mortgagee entitled to the order was a simple refusal of an application or not. The notice of motion had benefit of several old mortgages (or mortgages made before the commence therefore been given too late in the present case. The Court of Appeal ment of tbe Act), taking a grant or transfer of a new mortgage (or mortgage (BAGGALLAY, LUSH, and LINDLEY, L.JJ.) reversed this decision, and heard made since the Act), not expressly excluding section 17, and you say that in the appeal on its merits, holding that the notice of motion to discharge the such & case the mortgagor will, notwithstanding section 17, 'be able, by order in chambers had been given in time. They said that section 50 of the picking out those wbich be desires to redeem and including anong them the new Judicature Act of 1873 provided that orders made by a jadge in chambers mortgage, to prevent the mortgagee from consolidating the rest of the old | (except the discretionary orders mentioned in section 49) may be set aside or mortgages.' This conclusion seems to rest on your interpretation of the discharged upon notice by any divisional court, or by th: judge sitting in Fords the mortgages,' in sub-section (3) of the section under consideration ; court, "according to the course and practice of the division of the High Court they mean, you say, 'the mortgages which the mortgagor seeks to redeem, to which the particular cause or matter in which such order is made may be and whicb, if an action is brought, are the subject of the redemption action.' assigned," not the practice of the particular judge of the division. There did I have looked at the section again, and I cannot help thinking your interpre- not appear to be any settled practice of the Chancery Division as to the time tation incorrect: 'the mortgages' referred to in sub-section (3) are the mort. within which such appeals from the judge in chambers to the judge in court gages already referred to-viz., the one mortgage' which the mortgagor should be brought. The case of Dickson v. Harrison (26 W. R. 730, L. R. 9 does seek to redeem, and the 'separate mortgage' which he would rather not Ch. D. 243) was not an authority that twenty-one days ought, necessarily, to redeem, but which the mortgages (under the dootrine of consolidation) seeks to be the limit, wbether the order was a simple refusal or not. Their lordships force him to redeem. If this be so, the section only enables the mortgagor in thought that the analogy of rule 15 of order 58 as to appeals to the Court of the case you suppose to redeem the new mortgage without being forced to Appeal from interlocutory orders should be followed, and that appeals to the redeem the old ones; and the old mortgages not included in the redemption judge from orders in chambers should be brought within twenty-one days astion could still be consolidated with the old mortgages which are included from the date of the pronouncing of the order in the case of a simple refusal, in it. Divide the mortgages mentally into pairs, as is done in the section, and and in other cases within twenty-one days from the date of the perfecting of al difficulty vanishes."
On the merits a question arose as to parties. The action was brought might not be a sufficient ground for removing him from his office, and the judge to set aside a contract for the purchase of a leasehold house. The de had a discretion to intrust the whole or a part of the examination to other fendants were the vendors and the auctioneers who had conducted the sale, persons. It was also entirely within the discretion of the judge whether the and who had received the deposit paid by the plaintiffs on signing the agree-examination should be general or limited. If there had been a slip or a gross ment for purcbase. The property was sold subject to a condition that the miscarriage, the Court of Appeal might interfere, but it would require a very higbest bidder should be the purchaser, the vendors reserving the right of strong case to induce them to interfere with the exercise of the discretion of bidding once or oftener by themselves or their agents. The plaintiffs by their the judge of first instance. BAGGALLAY and Lugu, L.JJ., concurred. But statement of claim alleged that they attended the auction for the purpose of the order of Fry, J., was varied by directing that the witness should attend bidding thereat for the property. The property was put by the auctioneer only one day at his own expense. -SOLICITORS, Jumes Burn ; Flux & Leadin the ordinary way, and what appeared to be a very brisk and eager competi.bilter. tion between bidders ensued. Ultimately the auctioneer announced that the biddings had reached £12,950, and had already said the words “ going, going,"
BILL OF SALE - ASSIGNMENT OF AFTER-ACQUIRED CAATTELS.-BANKRUPTCY when the plaintiffs, who up to that time had made no bid, being induced by the language and manner of the auctioneer to believe that the property was about |
AND DISCHARGE OF GRANTOR-RIGHTS OF GRANTEE-BANKRUPTCY Act, to be knocked down to a bona fide bidder at £12,950, bid £13,000, and, there
1869, ss. 12, 31, 49.-In a case of Collyer v. Isaacs, before the Court of Appeal being no subsequent bidding, the property was knocked down to them at that
on the 16th inst., & question arose as to the rights of the grantee of a bill of price, and they paid a deposit of £1,300 to the auctioneers in accordance with
sale of chattels against chattels acquired by the grantor after the execution of the conditions of sale. The plaintiffs alleged that they bad since discovered
the deed, and after the subsequent liquidation of the grantor in which he had that, for the purpose of obtaining a bigher price to be paid to the vendors, and
obtained an order of discharge. By the deed the grantor assigned to the consequently a higher remuneration for the auctioneers than could be obtained
grantee, as security for an advance, all the chattels mentioned in a schedule by a fair sale in the market, the defendants had combined to run up the price
belonging to the gruntor, and then in or upon a house occupied by him, and in the following manner :-The auctioneers were not to bid, but were to pre
all other chattels which might at any time thereafter be brought therein in tend to accept fictitious biddings from all quarters of the room, so as to induce
addition to or in substitution therefor. After the execution of the deed the the public to believe that tbere were many eager and anxious bidders desirous
grantor filed a liquidation petition, under wbich his creditors granted him an
order of discharge. He subsequently brought new chattels into the house, and of purchasing, whereas, in fact, there was no bidding whatever for the prop. erty except that of the plaintiffs. All the rest of the transaction was a pure
| the grantee took possession of these chattels and advertised them for sale. The fiction and deceit. On these grounds the plaintiffs claimed to have the agree.
| grantor then brought the action, claiming an injunction to restrain the grantee
from taking possession and selling. Hall, V.C., refused to grant the injunc. ment for purchase rescinded, and to have the £1,300 repaid to them by the
tion. The Court of Appeal (JESSEL, M.R, and BAGGALLAY and LUSH, auctioneers, with interest. They also claimed the costs of the action and damages against all the defendants.
L.JJ.) held that it ought to have been granted. JESSEL, M.R., said that The auctioneers took out a summons, asking tbat they might be at liberty to pay the £1,300 into court to the credit
he thought the Vice-Chancellor's decision was contrary, not only to the of the action, and that thereupon the action might stand dismissed as against
spirit and meaning, but also to the words of the Bankruptcy Act, 1869. them, and that their costs of the action might be provided for. They bad not
An assigoment of after-acquired chattels was nothing more than & confiled any affidavit denying the charges made against them. Jessel, M.R., on
tract to give them to the assignee when they should come into existence. the undertaking of the vendors to pay the applicants their costs of the action,
Neither at law nor in equity could you assign that which was nonwithout prejudice to any question by whom those costs were ultimately to be
existeot. In equity the result was the same whether there was a borne, and also to pay any interest and damages to which the plaintiffs might
contract to assign after-acquired chattels, or the assigoment of them in form ; be held to be entitled, and the auctioneers undertaking, in the event of the
in either case there was only a contract, but the property would be bound in vendors not carrying out their undertaking, to pay the plaintiffs interest up to
equity when it came into existence. When the property came into existence the date of the payment of the £1,300 into court, and also the costs of the
there was a contract for the breach of which the contractiog party would action up to and including the summons, in the event of the court holding
incur a liability, and, if he became a bankrupt, the liability would, under that the plaintiffs were entitled to such interest and costs, gave the auctioneers
section 31 of the Bankruptcy Act, be proveable in the bankruptcy. And then, liberty to pay the £1,300 into court to the credit of the action, and that there
by section 49, the effect of an order of discharge was to relieve the bankrupt upon all further proceedings in the action should be stayed as against them,
from all proveable debts (with certain exceptions). If there was a debt and except so far as might be necessary to enforce their undertaking. The plain
also an agreement to give security for it, it would be a very strange thing if tiffs moved in court to discharge this order, except so far as it ordered the pay.
the debt was barred by the discharge in bankruptcy of the debtor, and the ment into court. Jessel, M.R., refused the motion with costs. The Court of
agreement to give security for it was not barred. Section 12 of the Bankruptcy APPEAL discharged both the orders of the Master of the Rolls and dismissed
Act, in preserving the right of a creditor “holding a security upon the the summons, ordering the auctioneers to pay all tbe costs. They held that
property of the bankrupt” to realize his security, notwithstanding the bank. the auotioneers were properly made parties to the action, and that the plaintiffs
ruptcy, manifestly intended to except only property which cuuld be then
realized by the creditor. The order of discharge got rid of all liabilities wbich were entitled to go on against them to trial, unless they gave them all the relief to which they would be entitled if they should succeed at the trial. If
were proveable in the bankrupicy, and (without saying what would be the the plaintiffs made out their case they would be entitled to have the deposit,
result if there was a definite agreement to charge definite property) in the case not paid into court, but paid to them, and to have an order for costs against
of a general liability proveable in the bankruptcy, the bankrupt was, by bis all the defendants, jointly and severally.-SOLICITORS, Last & Sons; Lewin $
order of discharge, released both from the debt and the ancillary contract to Co.; A. F. 8 R. W. Tweedie.
give security for it. His property was discharged as well as his person. BAGGALLAYand LUSH, L.JJ., concurred.-SOLICITORS, Grueber & Co.; H. Levy,
COMPANY-WINDING UP-COMPANIES Act, 1862, s. 115-EXAMINATION OF WITNESS BY CONTRIBUTORY-DISCRETION OF JUDGE-APPEAL-Locus Act of BANKRUPTCY-CONVICTED Felon_DEBTOR'S SUMMONS-ADJUDISTANDI.-In a case of In re The Silkstone and Dodworth Coal and Iron CATION OF BANKRUPTCY_33 & 3+ Vict, c. 23, s. 8.-In a case of Ex parts Company, before the Court of Appeal (Jessel, M.R., and Baggallay and Lusb, Graves, before the Court of Appeal on the 10th inst., the question arose L.JJ.) on the 16th inst., a question arose as to the right to examine a witness whether a convicted felon can commit an act of bankruptcy by not complying under section 115 of the Companies Act, 1862. An order baving been made wiih the requirements of a debtor's summons, issued and served on him after to wind up the company, the liquidator obtained leave in chambers to issue a his conviction, in respect of a debt contracted before, and, consequently, summons under section 115 against a director of the company to attend and be whether he can be adjudicated a bankrupt by reason of such default. The examined. One of the contributories then obtained an order in chambers question arose upon the construction of section 8 of the Act of 1870 (33 & 34 giving him liberty to attend on the examination on behalf of the liquidator, Vict. c. 23), which abolished forfeiture for felony. Section 1 of the Act and to examine the witness himself. The person summoned attended and was provides that:-“From and after the passing of this Act no conexamined on behalf of the liquidator, and, when the examination was con fession, verdict, inquest, conviction, or judgment of or for any treason cluded, counsel ou behalf of the contributory put questions to the witness or felody or felo de se shall cause any attainder or corruption of wbich he refused to answer. Fry, J., then made an order (29 W. R. 866) that blood, or any forfeiture or escheat, provided that nothing in this Act the witness should attend at his own expense and answer questions put to bim shall affect the law of forfeiture consequent upon outlawry." Section 6 on behalf of the contributory. From this order the witness appealed, and defines the word “convict” as meaning "ady person against whom, it was urged on his behalt that it was contrary to the practice to after the passing of tbis Act, judgment of death or of penal servitude shall make an order for the examination of a witness under section 115 by a bave been pronounced or recorded by any court of competent jurisdiction upon contributory, unless it was shown that the liquidator was not doing his any charge of treason or felony." Section 7 provides that, “When any conduty, and that it would be very oppressive to compel a witness to submit vict shall die or be made bankrupt, or sha'l have suffered any punishment to to two examinations on the same matter. In fact, a similar order had been which sentence of death, if pronounced or recorded against him, may be lawmade on the application of another contributory, and the witness might be fully commuted, or shall have undergone the full term of penal servitude for compelled to attend. for examination a great many times. JESSBL, M.R., whicb judgment has been pronounced or recorded against him, or such other said that the appellant had no locus standi to appeal from the order. He was a punishment as may by competent authority have been substituted for such full mere witness summoned under the order of the court to attend and give evid. | term, or shall have received her Majesty's pardon for the treason or felony of ence. He bad refused to answer questions which be admitted to be lawful which he may have been convicted, be shall thenceforth, so far as relates to questions, and then he appealed against the order that he attend and the provisions hereinafter contained, cease to be subject to the operation of answer. The only possible objection which he could make would be that the this Act." By section 8, “No action at law or suit in equity for the recovery court had no jurisdiction to make the order, but that was not even suggested. of any property, debt, or damage whatsoever shall be brought by any convict It was said that the order was oppressive. But section 115 gave the judge a against any person during the time while he shall be subject to the operation discretion as to the person who should examine the witness. The object being of this Act; and every convict shall be incapable during such time as aforediscovery, it was usual to intrust the examination to the liquidator, who was said of aliepating or charging any property or of making any contract, save as an officer of the court and who represented the creditors and the contributories. hereinafter provided." By section 9 and following sections power is given to But there might be cases in which he declined to interfere, or in which it was the Crown to appoint an administrator of the convict's property, and provision not fit that a particular examination should be intrusted to him, though there is made for the vesting of the property in the administrator and the application of it by him, and the re-vesting of the property in the convict or his re property. In this action an order was made on the 23rd of November, presentatives upon his ceasing to be subject to the operation of the Act. Sec. 1880, that the plaintiff should deliver written particulars of breaches to tion 21 provides that, if no administrator sball lave boen appointed, an the defendant, and that, unless they were delivered within a week from interim curator of the property of the convict may be appointed by justices of the date of the order, all further proceedings in the action should be stayed. the peace in petty sessions. And by section 27, “ All judgments or orders for No particulars were delivered, and no further proceedings bad been taken in the payment of money of any court of law or equity against such convict which the action, and do fresh proceedings had been taken by the lessor against shall have been duly recovered or made, either before or after his conviction, the vendor, though be bad told the porobaser that he intended to go on may be executed against any property of such convict, under the care and with bis action. The vendor deposed that, to the best of his knowledge management of any such interim curator as aforesaid, or in the hands of any and belief, there had been no breach of the covenants, and the porohaser, person wbo may have taken upon himself the possession or management who had had an opportunity of inspecting the premises, did not allege thereof without legal authority, in the same manner as if such property were that there had been any breach. The vendor had been in andistarbed in the possession or power of such convict; and all such judgments or orders possession of the property. Under these ciroumstances FRY, J., held that may likewise be executed by writ of scire facias, or otherwise, according the vendor could not be called upon to give any further evidence of the to the practice of the court, against any sach property which may be vested in performance of the covenants, and that the purchaser must complete bis any administrator of the property of such convict under the authority of this
porchase.-SOLICITORS, H. T. Gastrell; Spyer & Son. Act.” In the present case a debtor's summons was, after a conviction for felony, issued and served on the convict. He denied the debt, and applied to the coart to dismiss the summons, but his application was refused. He failed to WILL — CONSTRUCTION - MORTGAGE Debrs — CHARGE ON MORTGAGED pay or compound the debt within the time limited by the summons, and the PROPERTY-EXONERATION OF PERSONALTY-CONTRARY INTENTION-LOCKE creditor thereupon filed a bankruptcy petition against him, alleging the non- | King's ACT--30 & 31 Vict. c. 69.-In a case of In re Trevelyan, deceased, compliance with the summons as an act of bankruptcy. Mr. Registrar Perceval v. Trevelyan, before Chitty, J., on the 16th iust., an important Brougham refused to make an adjudication, on the ground that, inasmuch as question was argued whether certain mortgaged debts were payable out of the section 8 of the above Act made the convict incapable of alienating his prop- personal estate, notwithstanding Locke King's Act, and the 30 & 31 Vict. c. erty so long as he was subject to the operation of the Act, he could not law- 69, under the following circumstances:-By his will the testator in the cause, fully pay the sum claimed by the summons, and therefore his non-payment of after reciting that an estate, calleł the Wallington Estate, was subject to two it was not an act of bankruptcy. The Court of Appeal (JESSEL, M.R., and Lush mortgages for £25,000 and £12,000, and also that the testator might become and LINDLEY, L.JJ.) reversed tbe decision, and held that an adjudication subject to some liability as residuary legatee under the will of his father, he must be made. Jessel, M. R., said that the convict was liable to pay bis declared that the Wallington Estates should be exclusively charged debts, and section 27 expressly reserved to any creditor the right to issne with the two mortgages in exoneration of his personal estate. The execution against his property. If the suggested construction of the Act testator subsequently made a gift of the residue of his estate after were right, the creditor who first issued execution against an insolvent con-payment of bis debts other than those for which he had previously vict would get paid to the detriment of his other creditors, and the made provision. It was, alleged on behalf of the devisees of the equitable distribution of bis property in bankruptcy for the benefit of all bis Wallington Estates that another mortgage debt of £18,000 on that estate creditors could not take effect. When section 27 said that the convict should be was payable out of the personal estate, and not out of the Wallington Estate. incapable of alienating his property, it meant that he should not make away with It was contended that in the will a sufficient “contrary or other intention," it; it did not mean that he should not pay his debts. The court would not within the meaning of section 1 of the 30 & 31 Vict. C. 69, was declared by attribute an absurdity to the Legislature. Lush, L.J., said that the Act put words “ expressly or by necessary implication referring to all or some of the
convict for felony in the same position as a convict 'for misdemeanor. İle | testator's debts or debt charged by way of mortgage on any part of his real was restrained from improperly making away with bis property, so as to de- estate.” CHITTY, J., was of opinion that a sufficient contrary intention was prive his family or his creditors of it. The Crown might intervene by appoint shown by the will so as to exclude the application of Locke King's Act. The ing an administrator, but the rights of the creditors were not interfered with. only debts referred to by the testator (except his liability as residuary legates There was no reason why a convict should not be liable to bankruptcy like to his father) were mortgage debts, and therefore, in his opinion, when the any other person. LINDLEY, L.J., said that it would be extremely hard upon testator said that his personal estate should bear " debts" other than those he the felon if he could not pay a debt which he owed to a creditor, and thus had already otherwise provided for, the word "debts" included mortgaged avoid the costs of a judgment and an exeontion. This would be a cruel coli debts, and ther-fore that the mortgage for $18,000 was not primarily payable straction of section 8, and, when the other sections of the Act were looked at, out of the Waliogton Estates, but out of the residuary personalty. -it was clear that section 8 did not mean what the registrar thought it did. - SOLICITORS, Williamson, Hill, & Co.; Gregory & Co. SOLICITORS, Lewis & Lewis ; Carr, Son, f. Thornton.
TRADE-NAME-PIRACY-INJUNCTION.-In a case of Clayton v. Day, before MORTGAGE-FORECLOSURE, ACCOUNTS—INTEREST.--Io a case of Elton v. Chitty, J., on the 11th inst., a motion was made by the plaintiff, the owner Curteis, before Fry, J., on tbe 7th inst., a question arose as to the proper mode of an old-established blacking manufacturing firm of “ Day & Martin," to of computiog subsequent interest in taking the acgounts under a foreclosare restrain the defendants Day & Martin from selling goods manufactured by decree. The action was a foreclosure one by a first mortgagee against the them as goods of the plaintiff's manufacture, and from using any labels or mortgagor and the second and third mortgagees. The ordinary decree having marks only colourably differing from those of the plaiotiff's firm, also from been made, the obief clerk certified tbe amount due to the first mortgagee circulating advertisements representing that the defendants were carrying for principal and interest down to six months after the date of the certificate on the plaintiff's business. It appeared that in September, 1881, the de. The second mortgagee paid this amount at the end of the six months, and the fendant Day, an ironmonger's assistant at Southsea, and the defendant first mortgage was transferred to bim. The obief olerk then certified the Martin, a tobacconist at the same place, entered into an arrangement to amount due to the second mortgagee for what he had paid to the first mort. carry on a blacking-making business under the name of “ Day & Martin," gagee, and interest thereon down to three months after the date of the certifi and they had prepared certain labels and wrappers similar to those used cate, and also wbat was due to him on the second mortgage for principal and by the plaintiff's firm, CHITTY, J., was of opinion that this was an upfor interest down to the same date. The tbird mortgagee failed to pay what principled attempt to obtain the benefit of the plaintiff's long-established was due to the second mortgagee, and the decree for foreologare was made business, granted an injunction in the terms asked until the trial.-SOLICI. absolate against him. The chief clerk then took the accounts as against the TORS, Farrar f Farrar; A. W. Mills. mortgagor, and certified the total amount due from him to the second mortgagee, and, in so doing, be compated interest down to three months after the date of the certificate upon the whole amount which the third mortgagee
TRADE-MARK-SIMILARITY-OLD MARK – REGISTRATIOY - CONCORRENT bad been ordered to pay and had failed to pay; thus, in fact, computing
USER.-In a case of Re Hodson's Trade-Mark, before Chitty, J., on the 14th interest for the period sabsequent to the date fixed for redemption by him
ingt., an application was made under the Trade-Marks Registration Act, opon interest as well as principal. The mortgagor took out a summons to
1875, by Hodson & Co., brewers, for liberty to register as their trade-mark vary the certificate, on the ground that, according to the ordinary practice,
a lozenge or diamond with a lion in the centre. Bags & Co., brewers, the subsequent interest ought in such a case to have been computed only on
opposed the registration, having registered in Jandary, 1876, a lozenge or principal. The practice did not appear to bave been anywhere very clearly
diamond of a plain character. Both marks were asnally red. For the laid dowo, but reference was made to Whatton y Cradock (1 Keen 267): applicants evidence was adduced that they had been in the habit of using Whitfield v. Roberts (7 Jur. N. 8. 1268); Wilkinson v. Charlesworth (2
their trade mark for eight years prior to the present applioation. Chitty, Beav. 470); Bickham v. Cross (2 Ves. sen, 470); and Harris v. Harris
J., was of opinion that the mark of the applicants so nearly resembled that 3 Atk. 722). FRY, J., held that the chief clerk was right in computing
used by Bass & Co. as to be calculated to deceive. In his opinion, more. interest on the wbole amount found dae from the third mortgagee, interest
over, the evidence of user was of so slight a kind as pot to give the appli. as well as principal.-SOLICITORS, J. L. Morris ; A. F. & R. W. Tweedie.
oants a concurrent right to use their trade-mark. He therefore refused the application with costs.-SOLICITORS, De Jersey, Micklem, & Co.; Jennings,
Son, f Burton. VENDOR AND PURCHASER-CONTRACT FOR SALE OF LEASE-EVIDENCE OF PERFORMANCE OF COVENANTS IN ORIGINAL LEASE.-In a case of Ringer to BILL OF SALE-STATEMENT OF CONSIDERATION-BILLS OF SALE ACT, Thompson, before Fry, J., on the 5th inst., a question arose as to the evidence 1878, s. 8.-In a case of Ex parte Rolph, before the Court of Appeal, on the which opght to be furnished by the vendor of a lease to the purchaser of the 10th inst., the question arose whether the consideration for a bill of sale was performance of tbe covenants in the lease. The contract was an open one. properly stated in compliance with section 8 of tbe Bills of Sale Act, 1878. The vendor produced the lessor's receipt for the payment of the rent down to the bili of sale was executed on March 23, and it comprised the grantor's Michaelmag, 1879, bat after that date the lessor had refused to receive the household furniture, and was expressed to be made in consideration of £50 rent wben tendered to bim. He alleged that tbere had been breaches of the paid by the grantee to the grantor "at or before the execution bereof." Only Covenant to repair contained in the leage, and in November, 1880, he oom. £21 10:, was paid to the grantor on the execution of the deed. The grantee menced an action against the vendor to recover possession of the demised retained £3 103. for the cost of preparing and registering the bill of sale, and £25 for two quarters' rent (up to June 24) of the grantor's house, in whicb been duly elected and appointed, transfer to them all the residue of the furniture was, and he paid this £25 to the landlord on March 30. These the £20,000, and that the same should be beld by the trustees thereinafter fums were retained in accordance with a request in writing by the grantor. Damed upon certain trusis therein declared for the benefit of a charity. The On April 25, the grantor filed a liquidation petition. The grantee had a few wife died on the 26th of April, 1870. Robson died in July, 1877. He had days previously taken possession of the furniture. The trustee in the liqui- not paid the £20,000 to the trustees of the first deed of August, 1868. His dation claimed a declaration that the bill of sale was void as against him, on estate was insufficient. The action was brought by the trustees of the first the eround that the consideration was not troly stated in it. Bacon. C.J. I deed, on bebalf of themselves and the other creditors of Robson, asking for held that the consideration was sufficiently stated. This decision was reversed the administration of his real and personal estate, and also that the trusts of by the Court of Appeal (JESSEL, M.R., and Lush and LINDLEY, L.JJ.). the two deeds of August, 1868, and of the will of the wife should be executed. JESSEL, M.R., said that, passing over the deduction of £3 10g, for expenses, Bacon, V.C., decided that the charitable provisions contained in the two the real consideration for the deed was partly a payment of £21 108. by tbe deeds and the will of the wife were valid so far only as they could in a due lender, and partly an agreement by bim to pay $25 for rent. No rent at all course of administration be satisfied out of such part of the personal estate was due till March 25. But, assuming tbat the whole £25 would tben become of Robson as had not arisen from, or was not connected with, land ; and that due for rent, did the borrower ever receive the £25, or have a chance of receiv. such charitable provisions ought to abate in the proportion which the value ing it? Certainly not. The meaning of the retention was, that the lender did of the testator's personal estate, at the time of his death, hore to the value at not wish to trust the borrower with the money ; he wished to avoid the the time of his death of so much of his personal estate as bad not arisen from, chance of a distress for rent being levied by the landlord on the goods which were or was not connected witb, land. His lordship was of opinion that there assigned by the deed. That being the real nature of the transaction, was the had been a scheme to evade the Mortmain Act, and that the decision of the consideration truly stated in the deed ? The real consideration was the payment House of Lords in Jeffries v. Alexander (8 H. L. C. 594) applied. In that of so much money at the time, and a covenant by the lender to pay a further case B. in August, 1846, executed a deed by which he covenanted with the sum on a future day, and this was not stated. On this ground, therefore, the other parties to the deed that he would in bis lifetime, and within twelve consideration was not stated as required by section 8. But there montbs from ibe date of the deed, in vest a sun of £60,000 in the nomes of was another ground. In the deed the £50 was stated to be paid " at or before certain persons therein mentioned, or, in case he should not make the in. the execution bereof." The £25 was not paid till seven days afterwards. vestment in his lifetime, that his executors, witbin twelve months after bis And, though the word “at" had a somewhat elastic meaning, it had never death, and subject to the payment of his delts and legacies, should invest the been extended so far as that. There was nothing more than a contract to £60,000 in the same dames, to be beld by the persons named upon certain pay the £25. The cases of Ex parte National Mercantile Bank (28 W. R. charitable trusts therein declared. On the same day B. executed his will. 848, L. R. 15 Ch. D. 42), and Ex parte Challinor (29 W. R. 205, L. R. 16 Cb. D. He did not communicate the deed to anyone before his death in 1851. It was 260), were distinguishable, and did not support the proposition that anything executed only by bimself. The House of Lords (though not unanimously) held in the sbape of a bona fide loan, if the borrower had ihe benefit of the money, that the trust for tbe charity was void, so far as the money would be parable was sufficiently stated if it was stated as a cash payment. This was not the out of the chattels real of the testator. The Court of Appeal (JESSEL, M.R., intention of the Act, and so to hold would be an evasion of it. Lush, LJ, | and Lush and LINDLEY, L.JJ.) held that this decision did not apply to the said the transaction was a mere sbam, a device by the lender to protect his present case, and that it was immaterial out of what property of Robson the own goods from the landlord. The Act would be defeated if it was beld to £20,000 might have to be satisfied. The covenant only created a debt, and be good. LINDLEY, L.J., said that it was impossible to stretch the previous deci. there was nothing to prevent the settlement of a debt on a charitable trust.sions so that they could apply to the present case.-SOLICITORS, Crews Dudley; SOLICITORS, Hare & Co.; Williamson, Bill, g Co.; Waterhouse of WinterWakeford May.
PLEADING-DEMURRER_OBJECTION FOR WANT OF PARTIES-ORD. 28,
JUDGES' CHAMBERS. R. 1-ORD. 16, R. 13.-In a case of Werdermann y. The Société Générale
(Before Kay, J.) d'Electricité, before the Court of Appeal on the 11th inst., the question arose
Oot. 6.–Marcussen v. Bonham, whether the objection of want of parties to an action can now be raised by demurrer. Rule 1 of order 28 provides that “any party may demor to This was an action brought by Louis Marcussen, of No. 6, London-road, ang pleading of the opposite party, or to any part of a pleading, setting up Southwark, in the county of Surrey, stationer, against Messrs. William & distinct cause of action, ground of defence, setorff, counter-claim, reply,
and Frederick Charles Bonham, auctioneers, of 409 and 410, Oxford-stret, (r as the case may be, on the ground that the facts alleged thereio do not for money had and received by the defendants belonging to the plaintiff. show any cause of action, or ground of defence to a claim or any part thereof, The facts were as follows:- On the 27th day of November, 1878, the plaintiff or set-off, or counter-claim, or reply, or as the case may be, to which effect | made an advance to ona Joseph Bentote, and took as security for the repaycan be given by the court as against the party demurring." The defendants ment an unregistered bill of sale over the goods and chattels of the said bad demurred to the plaintiff's statement of claim on the ground (among | Bentote, at 36, Arlingford.road, Tulse-bill. The instalments under the bill others) that some other persons ought to bave been made parties to the action. of sale were not regularly paid, and the plaintiff took possession of Bentote's The Court of Appeal (JESSEL, M.R., and Lugh and LINDLEY, L.JJ.) beld goods, but afterwards withdrew from possession upon certain terms. After that, since the Jadicature Act, the objection of want of parties cannot, as it this Bentote disappeared, and the plaintiff was unable to ascertain his wberecould under the old practice of the Court of Chancery, be raised by abouts until the 2nd day of July, 1881, when the plaintiff' found out that he demurrer. JESSEL, M. R., said that no doubt the old practice was preserved had renoved to Arundel Cottage, Loughborough-park, Brixton, when the when no other provision was made by the Judicature Act or Rules. But plaintiff seized and removed the goods under his bill of sale to the defendants' rule 1 of order 28 was a special rule as to demurrer; there was no auction rooms, and instructed them to sell the same. The goods were ac. other rule at all which allowed a party to demur. Consequently, so far as cordingly sold, and the proceeds received by the defendants. On the 9th day the rules went, there was no power to demur for want of parties. That of July, 1881, the defendants received a notice from a Mr. Hollingsworth, would seem to be quite conclusive. The subject, however, had not been claiming the proceeds of the sale onder a registered bill of sale dated the 6th overlooked, and anotber provision was made for it. It must be remembered day of May, 1881, upon the same goods. The defendants refused to part that there was formerly no such thing at common law as a demurrer with the proceeds to the plaintiff and the present action was brought. The for want of parties. Rule 13 of order 16 provided what was to be done defendants interpleaded and the summons was referred by the master to the now by & person who wanted to bave another party added; he had only to judge in chambers for final decision. The nature of the opposing claims to take out a summons asking that the party be added. The proceeding by the goods are set out in the learned judge's judgment (a written one), which demurrer could not, therefore, be allowed. LUSH, L.J., said that rule 1 of was delivered in obambers and a copy of which was supplied to the plaintiff's order 28 defined the office of a demurrer, and showed that it was a mode of solicitors by the judge's clerk. challenging the validity of a point of sobstance. And this was the only point which could now be taken by a demurrer.-SOLICITORS, G. S. f H. J. S. Matthews, for the defendants. Brandon ; 8. F. Weall.
Poncione, for the claimant.
Kay, J.-On the 27th of March, 1878, Bentote gave bills of sale of goods
to plaintiff, Marcussen, which was not registered. On the 6th of May, 1881, TRUST FOR CHARITY_VALIDITY_STATUTE OF CHARITABLE USES (9 GEO. Bentote gave another bill of sale of same goods to Hollingsworth which was 2, c. 36).-In a case of Emley v. Davidson, before the Court of Appeal on duly registered on the 9th of May. In July, 1881, the plaintiff took possesthe 141h inst., a question arose as to the validity of a trust in favour of a sion and sold these goods. The question is between the holders of these bills charity. On the 8th of August, 1868, one Robson executed a deed, by which of sale which has right to the proceeds. There is no bankruptcy or execution he covenanted with Emley and Gray that he would, at or before the expira. against the goods now existing: The Bills of Sale Act, 1878, does not affect tion of twelve months from the date of the deed, pay to them the sum of the question. It is settled that the former Bill of Sales Act of 1854 did not £20,000. And it was thereby agreed and declared that Emley and Gray alter priorities as between mortgagees, who must rank according to the dates should hold the £20,000 upon trust to pay the annual income thereof to of the execution of their respective mortgages. Prima facie, therefore, the Robson's wife for her life, upon her separate receipt, and after her death to plaintiff must succeed. Robson for his life, and after the decease of the survivors upon such trusts as However, Hollingsworth alleges that on the 6th of February, 1879, Ben. the wile should by will appoint. The same day the wifo executed a will by tote's mother purchased these goods under a sale by the landlord, who had wbich, in exercise of the power given to her by the deed, she appointed to distrained for rent, and shortly afterwards gave them to Bentote. This is Emley and Gray the £20,000, subject to tbe life estate of her husband, upon denied, and it seems that the mother claimed them on her own account on trust to pay thereout certain legacies and annuities. And, as to all the residue May, 1881, and was then examined before the Lord Chief Justice in an interof the trust fund, she directed that the trustees of her will should pay pleader, and this claim, which should bave prevailed had it been true, was the same to soch persons as she, by a deed poll to be executed by her, should barred. Her claim then was inconsistent with her present story, and I condirect and appoint for the purposes in the deed poll mentioned. And she sider both to be fictions. appointed Emley and Gray executors and trustees of her will. By a deed! Hollingsworth resists the claim of the plaintiff on another ground. He poll executed the same day the wife directed that the trustees of her states that in the early part of this year one Blaiberg, a judgment creditor, will should, SO soon as iho trustees thereinafter named should bave levied execution on these goods, when the interpleader which I have mentioned