« PreviousContinue »
been equitable instead of legal, and the mortgagee had obtained a foreclosure decree, “ he would have been entitled to
UNSATISFACTORY EVIDENCE. enforce that decree for twenty years by every process which a The result of the experience which a lawyer acquires with court of equity could give." But nobody showed the faintest desire to deprive the plaintiffs in Heath v. Þugh of any process regard to the conduct of mankind when called upon to exercise which a court of equity could give.” On the contrary, Lord the important social duty of giving evidence is very far from being Coleridge, in giving judgment at law against them, expressly satisfactory. We are perfectly sure that any barrister or solicitor said: “If they think that by going to the Chancery Division whose practice has afforded him sufficient opportunities of obserthey can get anything under their foreclosure decree, let vation would upon reflection admit that the amount of down
We do not interfere with them in any way." right perjury committed in courts of justice is very great indeed; Then Lord Cairns continued :—“The court [i.e., the Chancery number of cases in which witnesses, more or less consciously,
and, in addition to cases of "flat” perjury, there are a still larger Division) is now not a court of law or a court of equity, it is a court of complete jurisdiction.” Surely, the more plausible exaggerate or garble the truth. There is, no doubt, an almost inference from this is, not that the statute of 3 & 4 Will. 4 now
inevitable tendency on the part of those called on to give evidence means something different from what it used to mean, but that the to piece in the details of a partially remembered occurrence or set
of occurrences. The plaintiffs were at liberty to have taken Lord Coleridge at his word,
process of trying to recollect in such a case to have gone to the Chancery Division, and there his suit not gives rise to a number of conjectures or theories, which gradually having been barred by the statute) to have obtained the remedy usurp in the mind the position due to actually remembered facts”; which, while the court there was not a court of complete jurisdic- and, again, a degree of recollection far short of absolute certainty tion, they could only have obtained by resorting separately to the is very apt to harden into positive statement in the heat of court of law. “ And," continued his lordship, “if there were a
excitement or of resentment caused by a cross-examination variance between what, before the Judicature Act, a court of law insinuating doubts as to the witness's accuracy or credibility. and a court of equity would have done, the rule of the court of measure asserts, is felt to be a derogatory position. There is a equity must now prevail.” But the Act speaks of any conflict or variance “with reference to the same subject-matter," and there never certain amount of weakness involved in taking such a line, and was the faintest variance between the rules of law and the rules of so, under a hostile suggestion of doubt, people are frequently equity (this, again, is the correct language of the Act) as to how and from mixed truth and falsehood. Nothing is commoner than
driven over the line which separates perfect truthfulness from when the statute of 3 & 4 Will
. 4 ran in respect of the right for a witness in examination in chief to qualify his stateto commence an action of ejectment. Dr. Lamson might as well have said that the courts of law and the courts of equity were at ment with some expression importing that he is not absovariance, because the latter did not hang murderers while the former lutely certain, such as “I believe," or, " to the best of did, and have claimed to be acquitted on this ground. Lord Cairns my recollection.”. He is then cross-examined, and, under the continues :-“The argument of the appellants must, therefore, be, influence of questions which really impute no more uncertainty continues : -“The argument of the appellants must, therefore, be, than the witness-in-chief voluntarily expressed, he gradually gets that the possession of a legal mortgage, passing the legal estate as a pledge, put the mortgagee in a worse position than if he had not
surer and surer, till at length, being asked, in accordance with the got it; and exposed him to the risk, as soon as twenty years from procedure common in such cases, whether he will “swear it,” he the date of the legal mortgage bad expired, of forfeiting and losing replies with much vehemence that he will. It is a common thing the benefit of the suit and proceedings which he had in the mean
to find witnesses professing to be able to speak to the details of time properly taken, in the proper court, to have himself adjudged, and that in cases where there was nothing peculiar in the nature
conversations and transactions which took place a year or so back, by reason of the default of the mortgagor,
the absolute owner of the land.” We cannot for the life of us see why the appellants of the thing so as especially to impress the mind. Let any one of might not be content to say that the mortgagee was in no worse
our readers endeavour to recall the details of some conversation, but only in just the same position; and that the only risk to which even of an important nature, that took place a year and a half he was exposed was the risk of having to continue his proceedings ago, or even a few months ago, and we think he will probably in the court in which they had been properly taken, instead of have a more or less firm belief as to the general import of what
find it very difficult actually to remember them, though he may improperly beginning new proceedings elsewhere. And this we humbly confess to be our opinion. We think
passed. -(1) that the plaintiff Heath, by pottering about for several be unreliable from somewhat similar causes :—A matter which, in
To take another instance in which evidence is peculiarly apt to years instead of at once taking . steps to get a new trustee criminal trials, frequently becomes the subject of discussion is the appointed and then forthwith bringing his action, had como identification of persons, and we have a strong opinion that very mitted a laches which made him no very proper subject for peculiar indulgence; and this laches does not seem to be affected great numbers of the community are wholly destitute of a sense of by the fact that the co-trustee afterwards appointed was a joint dence of identity is often given with a positiveness which under
the responsibility which attaches to evidence of this sort. Eviplaintiff with him in the action ; (2) that he and his co- the circumstances seems astonishing. We think it is probable trustee had perhaps mistaken their remedy; and that the reasoning by which Lords Selborne and Cairns strove to show that they
that uneducated persons, whose life experiences are somewhat had not, more properly shows that they might have got their narrow, may have a keener memory for the faces of those who on remedy otherwise and elsewhere ; (3) that the method by which trifling occasions are brought in contact with them than those the result was arrived at is to be regretted, as tending to A busy professional man does not notice particularly the personal
whose experience is broader and who deal more with abstractions. introduce vagueness and looseness into regions where the total at.sence of such qualities is greatly to be desired.
appearance of the driver of the hansom that he hails for the purthink (4) that the practical effect is to establish a rule which will pose of being conveyed to chambers. It is very probable that the tend to the public convenience, and which would have given us
cabman may notice the hirer's countenance more particularly, unmixed satisfaction if it had been established by any means of forming thereupon perhaps a judgment as to whether he looks which we felt able to approve.
like an extra sixpence or not. But still, we cannot help doubting whether people in general notice so particularly and remember so
well the persons whom they casually encounter for a very brief The sittings for the trial of special and common jury actions will commence space as one must suppose a great many people to do from the way at the Guildhall on Monday pext. There are, says the Times' reporter, in which evidence of identification is often given. There are å nearly two hundred causes at present entered, of which number over eigbty good many causes tending towards rash and unreliable identificaare marked for special juries, while a few are to be tried without juries.
tion, such as, for instance, conceit, love of the marvellous, a wish to In the House of Lords on Thursday, Earl Cairns asked why it was that do be mixed up with sensational matters, an honest but injudicious judicial appointments had been
made under the Act of 1876 consequent on the eagerness to forward the cause of justice. In a certain trial, in death of Sir James Colville, and the resignation of Sir Montague Smith. The which the evidence of identity conspicuously failed, statements Lord Chancellor replied that, having regard to the appellate business of the Privy Council, he did not think there was any urgency in filling up the were made by one or two of the witnesses which very forcibly vacancies.
illustrate the way in which evidence of identity may be vitiated.
The procedure ordinarily followed by the police in such cases is of business. It often ends in their being suspected of shuffling by to put the accused person among a number of others and see the judge, and accused of it by the opposing counsel. The whether the witness can identify such person. One of the wit-imperturbable witness, who is as bold as brass, who is quite sure, nesses, who had in the first instance failed to identify the and who has his story quite pat, has a much better time of it. He accused, stated, by way of explanation, that the bold and uncon- may often be a great liar, but he gives much less trouble to the cerned demeanour of the accused had led him to think that she judge and jury and all parties concerned, except perhaps the could not be the person. This statement is most suggestive of counsel on the other side. the possibility of error in such cases. It is obvious that this witness was endeavouring, not to identify in the proper sense of the term, but to select one out of the number of persons before him by a wholly illegitimate test. It is yery difficult to say how
CORRESPONDENCE. the witness may most safely be tested, but it is obvious that the usual course adopted is not free from danger. The mischief RIGHT OF TRUSTEE IN BANKRUPTCY OR LIQUIDATION TO is that the witness knows that one among the
TENANT'S FIXTURES, sub
persons mitted to him is an accused person. He is expected to identify
[To the Editor of the Solicitors' Journal.] someone, and seeks to bring to the aid of memory other Sir, --With your permission I desire to call attention to the hardship indicia than those which it furnishes. A person whose mind which may result in practice from two comparatively recent decisions of is disciplined by education ought to be able to resist this the Court of Appeal- namely, Ex parte Stephens, In re Lavies (L. R. 7 tendency; a person who should consciously yield to it would Ch. D. 127), and Ex parte Brook, In re Roberts (L. R. 10 Ch. D. 100). be guilty of a grave moral offence, but undisciplined and The law as stated in those cases is now I think clear, that the effect of impulsive persons may perhaps be, to some extent, pardoned if in tho debtor is to place the trustee in the position of never having had
a disclaimer by a trustee in bankruptcy or liquidation of a lease vested they confuse together criteria which ought to be kept entirely any estate in the leasehold property. Consequently any severance distinct.
by the trustee of the fixtures attached to the property at the time There can be no doubt, on the part of the practical man as well of his appointment is necessarily wrongful (it being immaterial whether as the moralist, of the great importance of impressing on the the severanca took place before or after the disclaimer), and gives the community, in all ways which may be available, the sacredness of landlord a right to recover the value of the fixtures from the trustee. the duty involved in giving testimony: The oath which, from the hardship of which I speak. A hosier, on taking a lease of his shop
A case has now occurred within my own experience illustrating forcibly the most ancient times, has been imposed on the witness is both and premises, purchased the fixtures and fittings from the landlord at a the expression of the character of the duty involved and an valuation for £800. Within a few years he failed, and was made bank. attempt to insure its fulfilment. We question whether the oath, rupt. A trustee was appointed, and, after examining into the state of as now administered, adds as much as it is sometimes thought to affairs, disclaimed the lease. He then removed the fixtures and do to the sense of obligation felt by the witness, though it may fittings, treating them as mere furniture or chattels, and sold them. The perhaps have some effect. There can be no doubt of the landlord disputed his right to remove or sell them, and applied for and
very considerable influence that may be exercised, and no doubt is
obtained an order that there should be an inquiry as to whether the often exercised, in this matter by conscientious professional men
trustee had removed and sold any and what tenant's fixtures, and, if so,
what was their value, and the amount of damage caused to him by their in the performance of the function of taking the evidence in pre- removal. The inquiry was taken before Mr. Registrar Brougham, who paring for any legal proceeding. A person engaged in getting up held that everything attached to the floors or walls of the premises, evidence must necessarily have it in his power, to a large extent, to however slightly, was a tenant's fixture if it required the drawing of a minister to, or to restrain, the tendency on the part of a witness to single nail or screw to detach it; and on that ground he gave the landdeviate from, or improve upon, the truth. Great experience, tact, lord the value, not only of gasfittings, show.cases, counters
, &c., but and a high sense of duty are all needed in order, on the one hand, also of mirrors and clocks
, the whole having, as I have already to do justice to a case, and, on the other, not to induce any paltering lord has been, or will be, therefore, as you will see, paid twice over, first
mentioned, been purchased by the debtor on taking the shop. The land. with the truth on the part of witnesses. We have no doubt that by the tenant, and now by the trustee, while, under section 23 of the in many cases these qualifications are forthcoming, but in some we Bankruptcy Act, 1869, he is also entitled to prove against the estate for fear they are not. Again, the influence of judges in this matter is any damages he may have sustained by the disclaimer. I do not wish to obviously very great, and we are afraid that sometimes, though of question the correctness in law of the decisions to which I have referred, course unconsciously, the course they take tends to drive a witness but I venture to say that they have entirely reversed what was before over the line of strict veracity. The judge is, after all, mortal; he the universal belief and practice. It seems to me that, with his claim to has got to take a note, and he wishes to take a clear one. For
distrain for one year's rent in full, and now his right to tenant's fixtures
in the event of a disclaimer, the landlord is unfairly preferred to other this purpose he sometimes drives a witness into being clearer than creditors on no sufficient grounds. I therefore venture to hope that the witness has any right in conscience to be. Nothing is steps will be taken to bring the point prominently forward whenever the commoner than for a witness coming to speak to a conversation new Bankruptcy Bill is again claiming attention. after a long interval of time, to say only that the import of it was
WILLIAM STURT. so and so. The judge immediately asks what was said, and requires the very words so far as the witness can remember. This he does,
STAMP DUTIES, no doubt, on the principle that stating the general result of con
[To the Editor of the Solicitors' Journal.) versations is hardly evidence, and would be open to abuse, but the inevitable result is that the witness is driven to try to mould his otherwise specially engaged with stamp duties took serious interest in
Sir,-Supposing that, now-a-days, anyone beyond those officially or recollection of the general import of what passed into a conversa-them, I would
say that the case given in Mr. Simey's communication, tion, which, after the lapse of so long a time, he is not really able appearing in your number for April 29 (p. 403), was an interesting one. to do with perfect truth. The result is that his evidence becomes Long before the passing of the Stamp Act, 1870, with its section 8 an articial production, something like the speeches which (which section was applied to the instrument in Mr. Simey's case), the Thucydides puts into the mouths of generals and statesmen. We question of whether an instrument contained but one or more than one doubt whether it would not be safer and better on the whole to distinct) matter, and so attracted separate duties, was, on all hands, take all that the witness can truthfully give—viz., his general admittedly the most perplexing of stamp questions, and was the subject recollection of what took place. The absence of detail would be of not a few decisions of the courts.
I believe myself correct in saying that section 8, in the intention of its matter which would go to the weight of the evidence. We do framers, and probably in effect and operation, re-enacted the law not mean to say that a judge is not right in challenging in a embodied in these judicial decisions, or the leading ones. judicious manner general statements as to the results of con- Since the passing of the Stamp Act, 1870, the only judicial decision versations, but to insist on a witness always giving a conversation, under section 8, I believe, is that in Hadgett's case (26 W. R. 115), which
But so that it may appear in the “ direct oration on the judge's note case was, at the time, discussed at some length in your columns.* book, seems to us to be contrary to natural possibility. We are
I could fill some amount of your space by stating merely, without afraid that witnesses whose consciences are tenderly scrupulous discussing, the several cases known to me of official rulings under
section 8. often get scant consideration in court. They are a source of trouble to the judge, whose temper is perhaps sorely tried by stress
* SOLICITORS' JOURNAų for January and February, 1878.
For this space I do not now ask you, but will content myself with as a trade-mark, the fact that it had remained on the register as such for five stating the following points of “stamps" connected with the new Con- years was, by section 3, conclusive that Palmer was now entitled to the ex. veyancing Act, by way of (very humbly) supplementing your own clusive use of it as a trademark. CHITTY, J., decided (ante, p. 282) that this prompt, full, and conspicuously able articles and editorial remarks was the right construction of section 3, and, withont hearing ihe evidence, he the Act; and, as well, that the points are à propos of the questions arising dismissed the application. The Court of Appeal (JESSEL, Ñ.R., and COTTON upon section 8 of the Stamp Act, and touch directly the decision in and LINDLEY, L.JJ.) reversed the decision. *Jessel, M.R., said that it was a
well-established principle of construction, applicable to Acts of Parliament Hadgett's case. In the Conveyancing Act the points arise upon sections 9 and 34. And, adopted, unless this was controlled by the context, or was so manifestly absord
as well as to other documents, that the literal construction of words was to be first, as to section 9, the subject matter of which is the acknowledgment that it was clear it could not be adopted. The words of section 5 were too and the undertaking for the production and safe custody of title deeds, plain for argument. There were three cases in wbich an application might be in substitution for the ordinary covenant to produce, &3.
made to recify the register. The third was the present case exıctly. There In the case of the covenant, when contained in the conveyance and the was no limitation of the time within which the application must be made, mortgage, &c., it was never questioned that it was incidental : in other and, if section 5 stood alone, there wonld be nothing to argue. If there were words, was not separate matter requiring a separate stamp. And it is no other section there would be no limit as to the time within which the appliequally clear that the acknowledgment and the undertaking under the cation must be made. But the contention of the respondents was that the 5th like circumstance will alike escape separate duty.
section was limited by the 3rd section. When, however, a power was given by I have already had several cases before me of the acknowledgment and
one section without any limitation, there must be some other clear section to undertaking being inserted in the conveyance, &o.; and, secondly, of limit it. No one said that section 3 contained any express limitation, but it being by separate instrument; and in the latter case the instrument has the registration of a person as the first proprietor of a mark, which he called a
was said that its words implied a limitation. Did, then, section 3 mean that sometimes contained only the acknowledgment, and sometimes both that trade-mark, should, after the expiration of five years, be conclusive evidence and the undertaking. And the questions of stamp duty with these of his right to the exclusive use of that mark as a trade mark, or did it mean separate instruments are (1) when given under seal, and (2) when given what it said, that the registration of a trade-mark should, after five years, bave under hand only.
that effect? Here, again, bis lordship thought that the literal meaning ought When under seal it would, I believe, be officially ruled that the instrn. to be preferred. Of course, the registrar ought not to register anything but ment requires a fixed ten shilling duty.* When under hand only, a trade-mark. But he might be deceived. It was impossible for bim to tell the duty would, if any, be sixpence, but the liability to this duty would witbout any knowledge of the trade in what way a word had been used in the depend upon whether the subject-matter embodied a contract. That trade. It would be equally impossible for a judge to tell that. It came, there is a contract there need be little or no doubt, even in the case of
then, to this--the registrar' being deceived into registering as a trade-park the acknowledgment standing alone; for (to quote an opinion of some
that which was not a trade-mark at all, was it intended to give to the person authority) “the acknowledgment is evidence of a statutory contract or
who had obtained the registration a right to use as a trade-mark that which obligation, and the undertaking is in express terms an obligatory instru. sold his own goods under their real description, and could not have imagined
was not a trade-mark at all? What a hardship this would be on a person who ment."
that any one else would register that as a trade-mark. He might be involved The point arising upon section 34 is in regard to the declaration of in legal proceedings when he bad used every reasonable precaution. Suppose trust therein named, which operates to vest property in, upon an a man sold palm oil soap under that description; he would never dream of appointment of, & new trustee. And, speaking generally, this declara- looking at the register to see whether anybody else had registered that tion attracts the second stamp ruled in Hadgett's case to be payable in description as a trade-mark. If section 3 had the effect suggested it would respect of the conveyance or transfer. I say " speaking generally " be make the Act a mere trap for the honest trader who had sold his goods under cause it may be said that if there be no property to vest by-pass under their proper description, and this at the instance of the man who had knowthe declaration there is no actual conveyance or transfer, and so no ingly taken advantage of the ignorance of the registrar to procare the regis. second stamp payable. But here again it would be expedient to put on
tration of that which was not a trade-mark. It appeared to his lordship that the stamp
all reason and convenience were in favour of the construction which he bad May 9.
given to section 3 ; and he was glad to see that the well-known writer on trade.marks, Mr. Sebastian, bad taken the same view of the Act. He said, p. 33, that this enactment does not preclude a defence on the ground that
ibe name so registered is, in fact, no trade-mark, and was registered or is con. CASES OF THE WEEK.
tinued on the register by error." And a similar view was expressed by Pro.
fessor Bryce in his book on the subject. These writers thought that the fact TRADE-MARK-REGISTRATION - RECTIFICATION REGISTER – MARK
that the inark ought not to have been registered would be a good defence to an IMPROPERLY REGISTERED-LIMIT OF FIVE YEARS-TRADE-MARKS REG1s. action by the person who was registered as the proprietor of it. His lordship
was not prepared to say that they were wrong in their view, that it would not TRATION ACT, 1875, ss. 3, 5.-In a caee of In re Palmer's Trade-mark, before the Court of Appeal on the 4th inst., a question arose on the construction of be necessary first to apply to have the register rectified, but it was not neces. sections 3 and 5 of the Trade Marks Registration Act of 1875. Section 3 pro-sary to decide the point pow. It appeared to his lordship that the appellants vides that “the registration of a person as first proprietor of a trade mark shall were right, and that the learned judge ought to have ascertained the faots from be primâ facie evidence of his right to the exclu-ive use of such trade-mark, the evidence, and the case must be remitted back to bim for that purpose. and sball, after the expiration of five years from the date of such registration, Corton and LINDLEY, L.JJ., concurred.-SOLICITORS, Wilson, Bristows, $ Carp. be conclusive evidence of bis right to the exclusive use of such trade-mark, mael; Hollams, Son, & Coward. subject to the provisions of this Act as to its connection with the goodwill of a business." And by section 5, "If the name of any person who is not for the COMPANY-SHAREHOLDER—LIEN ON SHARES POR DEBT DUE TO COMPANY time being entitled to the exclusive use of a trade-mark in accordance with – JOINT HOLDERS-TRUSTEES. On the 8th inst, the Court of Appeal (JESSEL, this Act, or otherwise in accordance with law, is entered on the register of M.R., and LINDLEY and HOLKER, L.JJ.) affirmed the decision of Bacon, V.C., trade-márks as a proprietor of such trade-mark, or if the registrar refuses to in the New London and Brazilian Bank' v. Brocklebank (30 W. R. 422). The enter on tbe register as proprietor of a trade mark the name of any person who question was whether the bank had a lien upon shares standing in the names is for the time being entitled to the exclusive use of such trade mark in ac- of two persons (wbo were trustees of a marriage settlement, and who had in. cordance with this Act, or otherwise in accordance with law, or vested part of the trust funds in the purchase of the shares), in respect of . if any mark is registered as a trade-mark which is not authorized debt due by one of them to the bank. The articles of association provided to be so registered under this Act, any person aggrieved may apply that the company should have “a first and paramount lion and charge, avail. in the prescribed manner for an order of the court that the register may be able at law and'in equity, upon all the shares of any shareholder for any rectified; and the court may either refase such application, or it may, if satis. moneys owing to the company from him alone or jointly with any other per: fied of the justice of the case, make an order for ibe rectification of the regis. son ; and when a sbare is held by moro persons than one, the company shall ter, and may award damages to the party aggrieved." The question was have a like lien and charge thereon in respect of all moneys so owing to them whether the lapse of the five years is made by section 3 a bar to an applica. from all or any of the holders thereof alone or jointly with any
other person, tion to remove a mark from the register in a case where it ought not to have and in any case whether such moneys shall be payable or not. The invest been registered at all, because it was not a trade-mark within the meaning of ment of the trust funds in sbares of a limited company was authorized by the Act. More than five years ago Palmer registered the words “ Braided the settlement. One of the trustees was a partner in a firm which, in Jane, Fixed Stars" as a trade mark in connection with matches. An application 1879, went into liquidation, being then indebted to the bank for about was made by Bryant & May, manufacturers engaged in the same trade, to £4,000 in respect of dishonoured acceptances. Bacon, V.C., held that the rectify the register by striking out the mark so registered, on the ground that bank was entitled, in respect of this debt, to a lien upon the shares, paramount the words at ihe time of the registration were not used in the trade as a trade to any claim by the cestuis que trust under the settlement. It was urged mark, but merely as descriptive of the goods, and that there was no authority that the equitable right of the cestuis que trust, being in existence to register them as a trade mark under the Act. Evidence was adduced as to when the shares were purchased, was entitled to priority over the the way in which the words had been used, but the preliminary, point was right of the company in respect of the debt of the trustee contracted sabse. raised on behalf of Palmer that, even if the mark was not properly registered quently. JESSEL, M. R., said that it must not be assumed that, because a
trustee had power to invest the trust property in the shares of any company, It ie, perhape, open to contention that, as the Conveyancing Act contains that an investment in the shares of a company which contained in its articles covenant, it thereby comes under “Covenant, any reparate deed of," &o., in plain that by the articles of association the company had a paramount lien or no express charge of stamp, and the instrument being (unde sea]) one of a provision of this kind would necessarily be anthorized. It was perfectly the schedule of the Stanf, Act, and so, when arising out of a sale or mortgage, is charge on the shares for any debt, either joint or separate, due to them from liable to the ten shilling duty as a maximum only. But for the present it would any shareholder. One of the trustees in whose name the shares were registered be expedient to put on the (full) ten shilling stamp.
was indebted to the bank as a member of a partnership firm, Tbis was ex«
actly and clearly within the terms of the articles. It was the contract under the recovery of the debt, but to make Holt a bankrupt, and thas procure his which the trustee acquired the shares, and by that contract be was bonnd. But it removal from the office of trustee. This was a gross abuse of the bankrupt was said that when he bought the shares he was a trustee for others, and bought law, and it occurred after the well-known decision of the Court of Appeal in them with trust money, and that debts of the company arising subsequently to the Ex parte Griffin (28 W. R. 208, 12 Ch. D. 480), which made a great noise purchase of the sbares must be postponed to the prior equitable right of the cestuis in the profession at the time. There it was held by James, L.J., and Brett, que trust. The answer to that was that the charge of the bank by virtue of the L.J., to be a gross fraud on the bankrupt law to buy up a debt in order to be articles of association was prior and took effect when the shares were trans- able to threaten the debtor with baukroptcy proceedings, with the view of ferred into the names of the trustees. It was one of the terms on wbich regis- forcing him to abandon proceedings which he had taken to recover a debt due tration was made, it being stipulated by the company as a condition precedent to him, and Cotton, LJ., said that the bankruptcy proceedings must fail, that, if persons taking shares should owe the company any money, the com- because they
taken to obtain the payment of the pany were to have a charge on the shares registered in the names of such per- debt, but the debt was purchased in order to take the prosons for the amount of the debt. That alone was conclusive. Independently ceedings in bankruptcy. A solicitor who after that chose to be of time, the charge of the company from its nature must be prior. The trus. concerned in baying op a debt with the view of taking bankruptoy tees bought the shares on the terms of this liability to a charge in favour of proceedinge against the debtor for a collateral porpose bad no right to the company. How, then, could the cestuis que trust take the benefit of the complain if his conduct was viewed with disapprobation by a court of purcbase withont complying with the terms of the contract ? In bis lordship's justice. His lordsbip was not prepared to say that, as this ocourred after opinion the judgment of the Vice-Chancellor was right, and the appeal must the removal of the solicitor's olient from the office of trustee, and no injary te dismissed, with costs. LINDLEY, L.J., was of the same opinion. Ho bad, in fact, been done to the estate by his oondaot, it alone would have failed to seo on what ground the equitable owner of the shares could claim the been sufficient ground for depriving the solicitor of his coste, bat he did benefit of the investment aod repudiate the terms on which the shares were
pot say that the registrar was wrong in taking the sabsequent conduct into held. HOLKER, L.J., concurred.-SOLICITORS, Bircham, Drake, & Co. ; account in connection with the previous misconduct of the solicitor. It Ingle, Cooper, d Holmes.
would have been wiser not discuss the matter & second time in the
Court of Appeal, when the only result oould be to add the censure of the SOLICITOR TO TRUSTEE IN BANKRUPTCY-Right to Costs OUT OF BANK- court to the dismissal of the appeal with costs. LINDLEY, L.J., could not LUPT's ESTATE-DISCRETION OF COURT-IMPROPER CONDUCT-ABUSE OF see on what prinoiple it would be right to allow Sheard one farthing ont of BANKRUPTCY LAW--TAXATION OF Costs-POWER OF COCRT TO GO BEHIND the estate. So far from representing it for any beneficial purpose, he ALLOCATUR.-In a case of In re Pooley, before the Court of Appeal on the 4th appeared to have been appointed for the purpose of obockmating the iost., a question arose as to the power of the Court of Bankruptcy to refuse creditore. His conduct had been such as to compel any court of jastioe not to allow the costs of the solicitor of a trustee in bankruptcy to be paid out of the to allow bim a single sixpence. And what better position could bis solicitor estate of the bankrupt, on the ground that the trustee or the solicitor has been claim ? His lordship thought that the whole of the proceedings in this guilty of improper cooduct. One Pooley having been adjudicated a bankrupt, bankruptcy, on the one side and the other, bad been sbooking and dis. one Sheard was in December, 1879, appointed trustee in the bankruptcy. He oreditable to every one concerned. He thought that the solicitor had looked bad been a clerk, employed at a salary of £2 58. a week, in the office of a exclusively to the interests of his own olient. A solicitor who did that, newspaper of which Thomas Pooley, a son of the baokrupt, was the editor, and who forgot that other people had rights and interests, might go too and by whom Sheard was requested to act as trustee. Sheard was in April, far. A man was not board to sacrifice everything and everybody to the 1880, removed from his office by the court, on the ground that he was a mere interests of his own client, or to do everything which his olient told him to tool of the bankrupt, and one Holt was appointed trustee in bis place. The do. His lordship thought that the appellant bad gone lengths whicb, if evidence, in the opinion of tbe registrar and of the Court of Appeal, showed be were indicted for conspiraoy, might pat him in a very awkward position. that the appointment of Sheard was procured by buying up a large debt due The court, bowever, was not trying any case of that kind now, bat that the by the bankrupt, the purchaser being Rodney Pooley, another son of the appellant had gone too far in his zeal for his client was painfully manifest. bankrupt, and the present appellant being his solicitor, and afterwards solici: HOLKER, L.J., thought it clear that it was a gross abase of the bankraptoy tor to Sheard as trustee. By means of this large debt the appointment of law for persons to boy debts due to other persons for no other parpose than Sheard as trustee was carried. The court held that the purchase was made to enable them to carry the ohoice of trustee, or to enable them to place merely for the purpose of carrying the choice of trastee, and that the solici: anybody in a position of control with reference to the bankrupt's affairs. tor knew this. ' After Holt had been appointed trustee Rodney Pooley bought He could not see that there was anything in sach a transaction very different up a debt which he owed with the view, as the court held, of making him a from the conduct of a man who bought ap the right of another to exercise bankrupt, and thus procuring
bis removal from the office of trustee in the his franchise to vote for a member of Parliament, or for a member of any bankruptcy. The solicitor acted in this transaction again, and was, as the other institation. It seemed to his lordship to be the same thing, and to be court held, aware of the nature of it. A debtor's summons was afterwards
a piece of bribery. He regretted that this did not appear to be the view of issued against Holt in respect of this debt, but it did not appear that any the public in general, for he believed it was the commonest thing in the further proceedings in bankruptcy were taken against him. After the re
world for people to buy the rights of creditors to vote, and, having purobased moval of Sheard the costs of his solicitor were taxed, and an allocatur made that right, to exercise it in order to elect trustees who should be favourable by the taxing master. An application was made that the payment of to themselves or to a particular olass of the oreditors. But, although that the costs out of the estate should not be allowed, on the ground that Sheard and his solicitor had acted improperly. Mr. Registrar Hazlitt held that he bankraptoy, nevertheless there were many sing committed with reference
was apparently the view of a portion of the pablio who had to do with The Court of Appeal beld tbat notwithstanding the allocatur, the application to the administration of bankraptoy; and if such condaot were investigated could be entertained, and remitted it to the registrar to hear the evidence, not justifiable, but was a scandaloas abuse of the law. Indeed, that seemed The registrar then refused to allow the costs out of the estate, and his to have been practically decided in Ex parte Grifin, and it would be well for decision was affirmed by the Court of Appeal (JESSEL, M. R., and LINDLEY and HOLKER, L.JJ.). JESSEL, M.R., said that the ground on which the pay:
the community, and very advantageous in order to secure the moral dealings ment of the costs had been refused appeared to bim to be very simple and of people, that that decision should be more generally known than ap. very plein. The solicitor's right to costs out of the estate was simply the parently it was. He thought that it would not be straining the law at all right of Sheard, his client. He had no independent right. He might have
to say that the proceedings relating to the parohase of Holt's debt, with the a right of action against Sheard, but that was his only legal right. Sheard, if view of making bim a bankrupt and ousting bim from his position as trustee, he had conducted himself properly, would have a right to an indemnity out of amounted to a conspiraoy, for which thọ persons engaged in it might be the estate, and according to the ordinary rule the court would
allow the solicitor indioted.-SOLICITORS, Harper g Battcock ; H. F. Barnett. to avail himself directly of his client's right against the estate. The registrar had declined to allow this in the present case on the grounds~(1) that mis. conduct was proved against Sheard which would disentitle him to costs out of FORFEITURE CLAUSE_VALIDITY-GIFT OVER—EJECTMENT BILL IN COURT the estate ; (2) that personal misconduct was proved against the solicitor ; tbe OF CHANCERY—JUDICATURE Act, 1873, s. 22— PRACTICE, DISMISSAL OF allowance of the costs being a matter within the discretion of the court. His ACTION FOR WANT OF PARTIES.-In a case of Hurst v. Hurst, before the lordship was sorry that be could not disagree with the registrar on either Court of Appeal on the 6th inst., a question arose as to the validity of a clause point. He could not imagine a grosser abuse of the bankruptcy law than of forfeiture contained in a will. The testator gave all his freehold and lease. the whole story from end to end disclosed. It was not for him to say now hold property to bis executors and trustees upon trust (inter alia) to permit whether it amounted to an indictable conspiracy. From beginning to end, as his son to receive the rents of certain specified freehold and leasehold houses regarded the appointment of the trustee, the conduct of the bapkropt, his to and for his own use and benefit during bis life, and after his death upon two sons, Sheard, and the solicitor was deserving of the strongest reprehension trust that the executors and trustees should convey and assign the houses to of the court, as being an abuse of the bankruptcy law, and as being an im. the children of the son in equal shares, absolutely, on their attaining the age proper attempt to obtain by improper means ihe appointment of an improper of twenty.ope years. But, in case any of the children of the son should die person as trustee of the estate. Could a man who was so appoioted trustee, before attaining that age, then on trust to convey and assign the shares of the a man who had obtained the appointment, not for the honest purpose of pro- children or child so dying to the others or other of such children ; but, in case tecting the bankrupt's estate and administering it, but for the purpose of pro- of the son not baving any issue, or in case none of his children should live to tecting the interests of the bankrupt himself, be a man whose conduct was attain twenty-one, then the testator declared that the property, the rents of such as to entitle him to his costs out of the estate ? How could the court which would be receivable by the son during bis life, should be conveyed and better manifest its displeasure and disapproval as regarded similar proceed assigned by his executors and trustees to, and divided equally between, such of ings in future than by depriving such a trustee of his costs ? The registrar the children of the testator's daughter as should live to attain the age of had done so, and his lordabip entirely concurred in the propriety of his deci- twenty-one. The testator had, by a previous clause, given other freehold and sion. Then, after the removal of Sheard, a most censurable course of pro- leasehold property in a similar way to his executors and trustees on trust for ceeding was adopted by Rodney Pooley and the solicitor in purobasing Holt's his daughter for her life, with remainder to her children on their attaining debt. It must be taken from the answers of the solicitor to questions put to twenty.one. By a subsequent clause the testator declared that the bequest him in his examination that he knew that the objoot of the purchase was, not thereinbefore made to his son and daughter respectively should be subject to
the following condition - viz., that they should in nowise charge or in. bankruptcy could not reach the property acquired by the bankrupt after the cumber the property, the rents of which were receivable by them during their order, but after the expiration of three years they could do so with the sanction respective lives, or any part thereof. And, in case either his son or daughter of the Court of Bankruptcy, but subject to the rights of the creditors who had should so charge or incumber the said property, or any part thereof, then the become soch since the close of the bankruptcy. On the other hand, creditor testator declared that the bequest to bis son or daughter so transgressing such whose debts had accrued after the bankruptcy, and who could not, therecondition should thereupon become absolutely forfeited. Aod the testator fore, prove under it, could sue the bankrupt, and, after obtaining judgment declared that, in either of such cases, the trusts therein before created in favour against him, could issue execution against the property acquired by him after of the child or children of the son or daughter so transgressing should at once the closing of the bankruptcy. Section 71 gave the court power to re-open take effect. After the testator's death the son executed a deed affecting to the bankruptcy after the order closing it. But, having regard to the respeccharge his life interest by way of mortgage. One of the trustees of the will tive rights of the old and new creditors, their lordships thought that the order filed a bill in the Court of Chancery, before the Judicature Act came into re-opening the bankruptcy ought not to have been made without notice to the operation, against his co-trustee, the son, and the mortgagees, praying a new creditors, nor without letting them in to prove against the after.acquired declaration that the charge was wholly inoperative, except as working a property. The order re-opening the bankruptcy had not been appealed from, forfeiture of the son's life interest; an injunction to restrain the mortgagees and it was now too late to appeal from it without special leave. But, in a from receiving the rents of the property, and an order that they should pay case of this kind, their lordebips would, if necessary, give leave to appeal from tha rents which they had already received for the benefit of the person or that order. Bat the Court of Bankruptcy was bound to treat that order as persons entitled to the property in remainder expectant on the decease of the unimpeachable, and, so long as it stood, the order appealed from could not be
The son had had no children. Fry, J. (ante, p. 229), made a declara- supported. The effect of the re-opening order was to vest in the trustee all tion that the forfeiture bad taken effect. But, on the ground that there the property acquired by the bankrupt since its date, as well as that acquired ought to have been other parties to the suit, he declined to give any other by him before its date, for the benefit of the creditors who were entitled to relief, and dismissed the action in other respects. The Court of Appeal prove in the bankruptcy. The creditors whose debts were contracted after (JESSEL, M.R., and LINDLEY and HOLKER, L.JJ.) came to the conclusion the adjudication were not entitled so to prove, and the order admitting them that no other parties were necessary, and they affirmed the decision as to the to prove was wrong. But, although this order was technically wrong, their forfeiture. But JESSEL, M.R., in the course of the argument, said that an lordships thought it was substantially right, and if they were to discharge it action ought never now to be dismissed for want of parties, the judge having and to treat the order re-opening the bankroptcy as under appeal, they would ample power to add all necessary parties.
feel no difficulty in varying that order by making it conditional on the trustees On the opening of the appeal JESSEL, M.R., raised the objection that the paying to the new creditors out of the property acquired since the 18th of acti in was really an ejectment action, and that it was commenced by bill in February, 1881, & dividend on their debts equal to that which might be the Court of Chancery before the Judicature Act came into operation. Such received by the creditors who were entitled to prove under the bankruptcy. a bill would not lie. Ultimately, however, he came to the conclusion, Having regard to the difficulty of ascertaining what parts of the bankrupt's following a decision of his own at the Rolls, in a case of Vagg v. Shippey property realized by the trustee were acquired before and what after the 18th (Charley's Judicature Acts, 3rd ed., p. 35, 1 Charley's New Practice Cases, of February, 1881, their lordships thought it would be in the interest of all 8), that by virtue of section 22 of the Judicature Act, 1873, the suit, when it parties to allow the order appealed from to stand, to dismiss the appeal by conbecame transferred to the High Court, stood in the same position as if it bad sent, and to let all parties have their costs out of the estate. If this sugges. been an action of ejectment originally commenced in one of the common law tion was not acceded to, the court would give the respondents leave to appeal courts, and could, therefore, be maintained. - SOLICITORS, Mercer & Mercer ; against the order re-opening the bankruptcy, Poncione & Leggatt; Kingsford, Dorman, & Kingsford; John Hales.
The suggestion of the court was acceded to by the trustee.- SOLICITORS,
Nicholls g Grant; Piesse & Son ; Goldberg & Langdon. CLOSE OF BANKRUPTCY - POWER OF COURT TO RE-OPEN-RIGHTS OF CREDITORS SUBSEQUENT TO ADJUDICATION-BANKRUPTCY Act, 1869, ss. BANKRUPTCY-APPEAL TO CHIEF JUDGE-TIME-PAYMENT OP DEPOSIT 47,54, 71.-In a case of Ex parte Pitt, before the Court of Appeal on the 4th BANKRUPTCY Act, 1869, ss. 71, 82-BANKRUPTCY RULES, 1870, A, 145— inst., a question arose as to the power of the Court of Bankruptcy to make BANKRUPTCY RULES, 1878, R. 2.—On the 4th inst, the Court of Appeal an order, under section 47 of the Act of 1869, to close a bankruptoy in a case (JESSEL, M.R., and LINDLEY and HOLKER, L.JJ.) affirmed the decision of where no assets of the bankrupt are to be discovered ; and there was a further Bacon, C.J., in Ex parte Rosenthal (30 W. R. 492). The question was question as to the power of the court to re-open a bankruptcy after it has been whether the deposit on an appeal to the Chief Judge had been paid in closed, and as to the rights of creditors of the bankrupt whose debts were con- sufficient time, and whether the appeal could be entertained. Rule 145 of the tracted after the order of adjudication. A debtor, who had traded in London Rules of 1870 requires that the deposit shall be paid to the registrar “at or under the name of Gosling, absconded on the 27th of February, 1879, and was before the time of entering an appeal.” The 2nd rule of November 22, adjudicated a bankrupt under that name on the 11th of March. His real 1878, provides that the deposit" shall in future be paid by the party intending name was Tueski, but his creditors did not know this. On the 26th of March to appeal into the Bank ef England." In the present case the order appealed a trustee was appointed, but he could discover no assets, the bankropt having from was made on the 28th of January. The appeal was entered with the removed all his property when he absconded. The trustee being unable to registrar of appeals on the 17th of February. The deposit was paid to the trace the bankrupt or to discover any assets, the court on his application, being bank on the 6th of March. The Chief Judge dismissed the appeal, on the satisfied of these facts, on the 18th of February, 1881, made an order closing ground that the deposit had not been paid in time. In the Court of Appeal the bankruptcy. In August, 1881, the trustee discovered that the bankrupt it was urged that the rule of 1878 had, in effect, altered the provision of rule was carrying on business at Eastbourne under his real name of Tueski. He 145 as to the payment of the deposit “at or before " the entry of the appeal. had, in fact, commenced that business soon after the adjudication, having The registrar would not give a direction to the bank to receive the money borrowed money for the purpose, and he had acquired goods and contraoted until the appeal had been entered with him, and the bank would not receive debts in connection with that business, the creditors in respect of it knowing the money without the direction of the registrar. It was necessary, therefore, him only as Tueski, and not being aware of the bankruptoy. On the 27th of that the deposit should be paid after the entry of the appeal, and, if it was to August, 1881, the trustee seized the bankrupt's stock-in-trade and other be paid after the entry, it must be immaterial how long after. At the most property at Eastbourne and afterwards sold it, and on the 15th of September, there had been a mere irregularity, and section 82 of the Act provided that no 1881, on the application of the trustee, an order was made rescinding the order proceeding should be invalidated by any formal defect or by any irregularity, to close the bankruptcy, and re-opening it. This order was made without unless the court was of opinion that substantial injustice bad been caused potice to the creditors whose debes were contracted after the adjudication. thereby, which could not be remedied by any order of the court. It was In March, 1882, the trustee applied to the court for directions as to the dis stated that, since the decision of the Chief Judge, notice has been given by the tribution of the proceeds of sale of the bankrupt's property. Mr. Registrar Court of Bankruptcy that in future the registrar will give a direction to the Hazlitt directed that notice should be given to the new creditors, and, this bank to receive the deposit before the appeal is entered, and will enter the having been done, the registrar made an order that the creditors whose debts appeal when he receives the certificate of the bank that the deposit has been had been contracted by the bankrupt in his real name between the date of the paid. JESSEL, M.R., said that the provision of section 71 of the Act, that adjudication and the 27th of August, 1881, should be allowed to prove in the po appeal shall be entertained except in conformity to sach rules of court as bankruptcy, and to receive dividends, as if their debts had been contracted may, for the time being, be in force," bad not been repealed by section 82. before the adjudication. The Court of Appeal (JESSEL, M.R., and Cotton The two sections could well stand together. The rule of 1878 had not altered and LINDLEY, L.JJ.) held that this order was wrong in form, though it was the requirement of rule 145, that the deposit should be paid “at or before " the in substance a right order. Lindley, L.J., who delivered the judgment of entry of the appeal. The proper course, however, was that which appeared to the court, said that though section 47, which authorized the closing of bank. have been adopted in the Court of Bankruptcy since the decision of the Chief ruptcy proceedings, did not in terms apply to a case in which there were no Judge. Section 82 could not apply, for there had not been an irregularity; assets at all, yet considering that the object of closing the bankruptcy was to there had been an omission of a serivus kind. If the money had been paid at pụt an end to useless proceedings, and to enable the trustee to obtain his the earliest opportunity after the entry of the appeal, possibly the court might release, and considering also that orders closing bankruptcies, where there bad bave said that rule 145 had been substantially complied with. It might have been no assets, had been frequently made-e.g., in Ex parte Lancaster Bank been said that the words “at or before ” included "immediately after," But ing Corporation (27 W. R. 292, L. R. 10 Ch. D. 776)—and bad never been here the delay in making the payment had been so great that by no fair challenged, their lordships did not feel called upon to put on section 47 a extension of its meaning could it be said that rule 145 bad been complied narrow literal construction, and to hold that these orders were ultra vires and with. LINDLEY and HOLKER, L.JJ., concurred. - SOLICITORS, A. S. of no effect. Assuming, then, that the order closing the bankruptcy was Rosenthal ; Pattison, Wigg, & Co. valid, the trustee could not, while it was in force, claim property acquired by the bankrupt alter its date. That property belonged to him, although he had not obtained bis discharge, and was liable to execution at the suit of any credi. COMPANY-BORROWING POWERS ULTRA VIRES-CONTRACT FOR SALE tor who obtained judgment against him. This followed from section 54 of the AND HIRE OF ROLLING STOCK—7 & 8 Vict. c. 85—30 & 31 Vict. c. 127.Bankruptcy Act, 1869, and from In re Peltit's Estate (24 W. R. 359, L. R. 1 On the 9th inst. the Court of Appeal (JESSEL, M.R., and LINDLEY Ch. D. 478), and Ex parte Lancaster Banking Corporation. For three years after and HOLKER, L.JJ.) reversed in part the decision of Kay, J., in The the order closing the bankruptcy the creditors whose debts accrued before the Yorkshire Railway 'Wagon Company v. Maclure (30 W. R. 288). The