Page images

WE BELIEVE that the apprehensions which have been expressed better thing is, not that the court should relieve them of it, but that the failure of Messrs. JACKSON & GRAHAM, who held a that they should learn by experience how very unwise it is to contract for the interior fittings of four courts in the Royal Courts enter into such bargains, and therefore should in future not enter of Justice, will hinder the completion of the work, are without into them. Where the language is plain and, therefore, no real foundation.

question of construction arises, the court is bound to execute the contract as it finds it, and if it presses hardly upon one party or the other, the answer is that party entered into it with his

eyes CONDITION AS TO LAST RECEIPT FOR judgment, said : " But then it is urged against this that it [i.e.,

open." But it is to be observed that Lord Penzance, in delivering RENT.

the condition as to receipt for last payment of rent] is an Ar first sight it would seem that no more extraordinary instance of unreasonable provision, and that looking to the knowledge of the the readiness of intending purchasers to accept the most stringent vendor, and looking to what he had the power to do, this is a conditions of sale could be found than the prevalence, before section condition—a portion of the agreement which is inequitable and 14 of the Conveyancing Act came into operation, of the condition, ought not to be upheld by the court. If the question arose upon on the sale of leaseholds, that the receipt for the last payment of a suit for specific performance, there might be a good deal to be rent, accrued previously to the completion of the purchase, should said in that direction.” It must, therefore, we think, be assumed be accepted as conclusive evidence of the performance and that the rule in In re Banister is still operative, and that the observance of all the covenants and conditions in the lease. statutory condition will afford no protection to the vendor in Receipt of rent by a lessor is only a waiver of forfeitures of which respect of breaches of covenants of which he is, or must be he is aware at the time ; moreover the forfeiture might have occurred assumed to be, aware. Again, the statutory condition does not since the rent was paid, in which case the receipt would be no apply if the contrary appears"—that is to say, it does not apply waiver. It is curious to compare the tentative manner in which to any breaches of covenant which an intending purchaser can Mr. Sweet, in his edition of Bythewood, in 1844, suggested, in a

discover by taking a surveyor over the demised property. note to his leasehold conditiovs, that “it may be advisable to Practically, therefore, the statutory condition affords comadd” a condition as to the production of the receipts for the rent paratively little advantage to the vendor. up to the day fixed for completion being sufficient evidence, with the The ordinary form of condition in use provides (subject to provision on the subject in use in recent times. Mr. Sweet's con- divers variations in language) that "the receipt for the last paydition was not unreasonable, for it left it open to the purchaser to ment of rent accrued previously to the completion of the purchase inform the lessor of any breaches of covenant which he discovered shell be accepted as conclusive evidence of the performance of all before completion, and so to make the receipt for rent up to the the covenants and conditions contained in the lease, or of the day fixed for completion a waiver of all forfeitures. The modern effectual waiver of any breach thereof, up to the completion of the form of the condition leares him no such opportunity. The purchase." The effect is that the purchaser shall admit that the explanation of the prevalence of the condition is probably to be covenants and conditions have been performed and observed. The found, first, in the rarity of the cases in which forfeitures were rule in In re Banister is applicable here also, and the purchaser is formerly enforced by landlords ; and, next, in the conviction of not bound to admit that which the vendor knows not to be the intending purchasers that the condition could not be insisted on so fact. If, therefore, the purchaser can discover any breach of which as to cover serious breaches of covenant known to the vendor. It the vendor must have been aware, it would seem that he may refuse may be desirable to consider how far these reasons have been to complete unless an express waiver of such breach by the lessor affected by recent legislation and decisions, and to what extent

is obtained. It seems to us worthy of consideration whether the vendors and purchasers of leaseholds are now affected by the form of the condition ought not be altered so as to provide that condition.

the lease of the premises may be inspected at the vendor's soliciThe provision in section 14 of the Conveyancing Act has rendered tor's office within one week prior to the day of sale, and that the absolute forfeiture of a lease improbable; but, on the other hand, premises will also be open to inspection, and that the purchaser it will doubtless diminish or remove the reluctance of landlords shall be satisfied from such inspection, and from the production to take proceedings to enforce a forfeiture. Many a landlord who by the vendor of the receipt for the last payment of rent accrued would not have thought it just to deprire a tenant of his property previously to the completion of the purchase, of the performance will think it perfectly just to commence such proceedings when of all the covenants and conditions contained in the lease. As the tenant has the option of obtaining relief on payment of regards breaches of covenant existing at the time of sale and compensation for breaches of covenant. Hence it is more

discoverable by inspection of the property, this form of condition than ever important for intending purchasers of leaseholds to would, we think, render the vendor safe. consider the effect of the condition as to the production of the last receipt for rent. The statutory condition, as our readers are aware, provides that, “Where land sold is held by lease (not including underlease), the purchaser shall assume, unless ADMISSIBILITY OF EVIDENCE IN the contrary appears, that the lease was duly granted; and, on production of the receipt for the last payment due for rent

ACTIONS FOR DEFAMATION. under the lease before the date of actual completion of the We recently briefly drew attention to the case of Scott v. Samppurchase, he shall assume, unless the contrary appears, that all son (30 W. R. 541, L. R. 8 Q. B. D. 491) as being a decision the covenants and provisions of the lease have been duly performed which settles and elucidates the law on questions which have been and observed up to the date of actual completion of the purchase.” frequently discussed, but as to which there has been, up to the present Now, according to In re Banister, Broad v. Munton (27 W. R. time, some doubt. In actions for defamation it has long been 826), a purchaser is not bound by a condition which requires him settled that the truth of the defamatory matter is a defence. The to admit or assume a state of things which, to the vendor's reason for this is obvious. A man of whom that which is true is knowledge, does not exist; the utmost which can be required published cannot have a right to pecuniary compensation if he is from him in conditions of sale is to assume facts as to which the thereby damaged. He has sustained damnum absque injuriâ, for vendor has no definite knowledge that the assumption required is he can have no right to have the truth concealed. But in practice untrue. No doubt the recent case of Laurie v. Lees (30 W. R. it is comparatively seldom that the person who has published the 185) has thrown some doubt upon this rule. That was, like defamatory matter can absolutely prove it, and of course if it cannot In re Banister, an application to rescind a contract for the sale of be proved it is a most dangerous course to plead that it is true. leaseholds, containing the usual condition, on the ground of Moreover, a jury, when face to face with an issue directly involving existing breaches of covenant known to the vendor, and in the plaintiff's character, are reluctant positively to find against him, refusing the application a good deal was said by the law lords though they would be often willing enough indirectly to give the (none of whom, however, had been judges or practitioners in the defendant the benefit of a very strong opinion that the defamatory Chancery Division) to the effect that, if people choose to enter matter was pretty near the truth by way of reduction of damages. into a bargain of this sort, and it tells heavily against them, the There are cases in which it is morally certain that the plaintiff is very much what the defendant has said he is, where it may be the plaintiff's general character, or as softening the complexion of known to a whole neighbourhood that he is, yet it would be im- the defendant's wrongdoing by way of mitigation of damages. possible to prove it, and therefore dangerous to justify. In If the rumours were really prevalent to an extent calculated to such a case is it just that a person of that sort should come damage the plaintiff's character, the evidence will come in under into court and recover damages, on the footing that he the first head. On the other hand, in case of rumours not is a person of spotless reputation and the defendant the prevalent to that extent, it seems doubtful whether the person publisher of defamatory statements of an utterly wanton who gives currency to an idle rumour ought to be in any better and unfounded or malignant character? It is obviously extremely position than if he had been the original promulgator of it. At difficult to hold an even balance between the interests of plaintiff the same time we feel, to a great extent, the same difficulty with and defendant in cases of defamation. It is very forcibly urged regard to this sort of evidence that we feel with regard to the on the one side that, the action for defamation being one in respect whole subject. It surely must make the greatest difference in of damage done to character, it must necessarily be a question, the moral complexion of the defendant's act whether he, out of apart from any justification, what sort of character the plaintiff

, pure malice, fabricated the defamatory statement, or whether he with a view to the estimation of the damages, bore before the pub- merely foolishly repeated what he heard elsewhere. We are quite in lication of the defamatory matter. Again, the damages in actions favour of stringent repression of wicked and idle gossip and for defamation are vindictive, and the circumstances under which scandal, but it is not the same thing, so far as the measure of the defendant published the defamatory matter must be material damage is concerned, merely out of love of scandal to repeat a in ascertaining how far he ought to be punished by way of damages. statement as it is to fabricate it. With regard to the case of a On the other hand, it is also very forcibly urged that it is hard to newspaper editor who, on the strength of rumour, gives a stateinvolve the plaintiff, of whom ex hypothesi an untrue statement has ment the extended and authoritative publication which a newsbeen published, in an inquiry extending over his whole life without paper affords, we think that the previous existence of the rumour notice what unfavourable suggestions may be made or what would afford much less ground of mitigation than in many

other transactions gone into; that this would often really be to allow cases we could imagine. Still, in any case, as the damages are the defendant, by way of defence, to deepen and stereotype vindictive, we do confess we feel a difficulty in shutting out cirpopular rumours and calumnies which may have been from the cumstances that throw light on the character of the defendant's outset wicked and malicious, or, at best, utterly idle and baseless wrongdoing. If the damages in actions of defamation were gossip. The difficulty, we confess, does seem to us very great, merely regulated by the plaintiff's damage, pecuniary or otherwise, because in some cases to shut out evidence going to the plaintiff's we should feel no difficulty in accepting with perfect satisfaction character, though not amounting to an actual justification, would the ruling of the court on this head. really be allowing some impudent scoundrel, whose character was It seems clear that the first sort of evidence must, on principle, notorious in his own neighbourhood, to get heavy damages from be admissible, because, as the plaintiff sues in respect of damage some person who by honest indignation had been led to over- to character in public estimation, it must be material to the quesstep the limits of prudence in his statements; on the other hand, tion of damages to show what his character in public estimation was. in some cases to admit such evidence would be seriously detrimen- But in practice every one knows how unsatisfactory general evidence tal to the cause of some victim of undeserved calumnies or to character is. The probability is that most plaintiffs could get a unworthy prejudice. The decisions, which appear to have been sufficient number of persons, who would figure well enough in the mostly at Nisi Prius, present strong indications that these con- witness-box, to come and swear up their character by general flicting considerations have been present to the minds of judges. statements in answer to the evidence of witnesses who had sworn The decision we are discussing puts the matter, we suppose, on as it down by general statements on behalf of the defendant. It satisfactory a footing as can be expected considering that the would seem that such evidence must be admissible, but then when difficulty is inherent in the nature of things, but we doubt it came to cross-examination how would the case stand ? It whether


hard and fast rule can be entirely satisfactory. would seem, at first sight, according to the ruling with regard to The judgment, which was that of Mathew and Cave, JJ., the third sort of evidence, that it would be inadmissible to crossseems to be to the following effect. It analyzes the evidence as examine these witnesses as to particular acts of misconduct by to the plaintiff's character, not amounting to a justification, but the plaintiff within their knowledge. This result would, howwhich

may be tendered by the defendant in mitigation of damages, ever, almost amount to an absurdity. It has been held that and divides such evidence into three classes-first, evidence of witnesses to character on behalf of a prisoner may be cross-exgeneral reputation; secondly, evidence of rumours that the plain- amined as to particular acts, and, possibly, it may be held that tiff had been guilty of matter imputed to him by the defama- this case would be an exception to the inadmissibility of evidence tory statement complained of; thirdly, evidence of particular acts of the third kind, on the ground that the evidence goes to the or circumstances tending to show the plaintiff's disposition or credibility of the evidence in chief. character. In practice there would, perhaps, be some difficulty With regard to the ruling as to evidence of the third kind, we in always clearly discriminating between these three sorts of feel here too some difficulty in point of principle.

It is, no evidence, but still the distinctions seem sound and capable of being doubt, very difficult to say that a man who is libelled is to be predrawn, approximately at any rate. The judgment appears to hold pared to justify the particular transactions of his whole life, though that of these three sorts of evidence the first only is admissible it must be remembered that the strength of this argument is much on the part of the defendant. Another question also arose, which diminished if notice of the particular acts relied on must be given was one of pleading: Under the old system, the balance of him by the pleadings. Again, another objection to the admissibility authority seemed to be that general evidence of plaintiff's bad of such evidence is that it tends to incumber the trial with a character was admissible in reduction of damages, and, as damages number of side issues, which can be but very imperfectly inquired could not be pleaded to, this evidence was given under the plea into, and as to which, therefore, the plaintiff may be much preof Not guilty. It appears that under the new system, whatever judiced, on the principle that if you only throw dirt enough some evidence of the kind may be admissible, the pleadings must give of it will stick. Still, it is never entirely satisfactory to receive notice to the plaintiff of the intention to adduce it as a material general evidence, and yet shut out that investigation into particular fact in the case. We do not propose to discuss the pleading facts upon which alone general statements can have any substantial question ; our concern is with the broader and more interesting basis. The rule laid down will, no doubt, protect many a plaintiff aspect of the case. We cannot say that the judgment altogether re- who has been substantially wronged by a defamer; on the other moves our difficulties with regard to the two sorts of evidence which hand, it will be highly convenient to many a scoundrel who has it holds inadmissible, though, as we remarked when noticing the got occasion against some person whose fault is rather imprudently case before, we think the decision will be accepted as good law, to have said what is not very far from true, though he is unable to since it follows out the general tendency of the decisions on the prove it by legal evidence, than to have maliciously and falsely subject.

taken away another's reputation. It is very difficult, as we said With regard to the second sort of evidence-riz., that of at the outset, to say on which side the balance of expediency lies. rumours of the truth of the defamatory statement-this As against scandal-mongering society papers we should be disposed evidence can only be material in two ways ; either as going to to hail the ruling with satisfaction, but there are many cases

imaginable in which we fear its working will not be ground for I do not say that the Solicitor of Stamps was wrong; but only that unmixed satisfaction. Unfortunately the law cannot be altered to his ruling, if right, seems decidedly to imply that the law is not un. meet the particular class of plaintiff'suing or defendant sued. It changed.

JURISCONSULTUNCULUS. should be observed, in estimating the working in practice of the

Stone-buildings, Lincoln's.inn, May 15. decision, that, in the case in which it was pronounced, the plaintiff was not called on his own behalf. In cases in which the plaintiff is obliged to be called on his own behalf

, questions EFFECT OF DISCLAIMER OF LEASE BY TRUSTEE IN BANK. relating to particular acts go to his credit, and cannot be excluded

RUPTCY OR LIQUIDATION UPON TENANT'S FIXTURES, as it would seem. This, in many cases, will mitigate any incon

[To the Editor of the Solicitors' Journal.] venience which might otherwise be produced by the effect of the Sir,—The letter of your correspondent, Mr. Sturt, and the case before exclusion of the third head of evidence.

Mr. Registrar Brougham, noted in last week's issue of your journal, call attention to a point in bankruptcy which is of the utmost importance to creditors and is one of the greatest evils of the present law. The point

was mentioned in the comments upon the Government Bill of last sesCORRESPONDENCE.

sion, published in your issue of the 4th of February last (ante, p. 211), and it is earnestly to be hoped that it will be specially provided for in

any amendment of the law of bankruptcy which may be enacted. My CONVEYANCERS AND THE BI-METALLISTS.

oply object in troubling you with this letter is, however, to raise a sub[To the Editor of the Solicitors' Journal.]

sidiary point upon which, to my mind, your correspondent would appear Sir,—Some time ago, in perusing an abstract, I came across & mortgage struction I put upon his letter in this respect. He says that not only

to have fallen into a slight error, or it may be I am wrong in the condeed of the year 1853, settled by the late Mr. Lewin, in which it was stipulated that, if required by the mortgagee, the principal and interest does the landlord get paid for the ixtures twice over, but he is also should be paid in silver. As the currency question and the relation entitled to prove against the estate for any damage he may sustain by the between the precious metals are now receiving a lurge share of public disclaimer. Now, that proposition, I submit, must be allowed only with attention, it seems a favourable opportunity to ask whether any of your acquires a valuable property in the tenant's fixtures, then at least !

a certain limitation. If, as a result of the disclaimer, the landlord readers can throw any light upon this stipulation. It is, of course, well known that, in 1853, in consequence of the gold the proof which otherwise he would be entitled to make against the

think the value of those fixtures must be deducted from the amount of discoveries in California and Australia, gold had fallen slightly in value estate. The real measure of the damage he would sustain by the disas measured by silver, and it would seem that the conveyancer contemplated the possibility of a further fall. Still it is difficult to imagine any lease for the remainder of the term and the rent which could be obtained

claimer then would be the difference between the rent reserved by the state of circumstances in which the provision in question would have bad by him from a new tenant, less a reduction for present proof on the any operation. So long as gold remained (except for very small supus) the sole legal tender, it would not be to the mortgagee's interest

to difference in the future rents, and less also the value of any benefit he enforce it ; it silver were made the sɔle legal tender, the provision that might obtain by reason of the disclaimer. In this way it might be payment should be in that metal would be superfluous ; and even under that his claim for proof would be nil. I am not aware that this bag a double standard, such as is desired by the bi-metallists of the present been decided in any case, but it appears to me so reasonable and fair, day, the enactment relating to legal tender would, no doubt, be held to that I have felt some confidence in advising to this effect when the

A SOLICITOR. prevail against any contract or stipulation to the contrary contained in question has come before me in practice. any instrument. There is, perhaps, one other possible explanation, but of such slight probability as to be scarcely worth considering. Can it be that Mr. Lewin thought it possible that with greatly altered relative

THE CONVEYANCING ACT. productions of gold and silver, no legally established ratio of value would

(To the Editor of the Solicitors' Journal.] be maintainable ?

It would appear then that, even in view of a possible alteration in the Sir, - Are Messrs. Prideaux (11th ed.) and Davidson (12th ed. Concise law relating to the standard of value, no special provision would be Convey.) correct in using the words "in feo simple" in the habendum needed in contracts providing for future payments. This consideration of a mortgage of freeholds to an incorporated building society instead derives practical importance from the instance narrated above; for it of the words, "and their successors" previously in use? If section 51 would undoubtedly be a material argument against any proposed change was not intended to apply exclusively to deeds containing limitations to that it required to be guarded against by special provisions. In fact, individuals other than corporations sole, why were the words without however, the proposals of the bi.metallists—viz., the free coinage of silver, the words heirs" used in that section ? and making silver an unlimited legal tender, carried out by an inter. Section 39 [power for court to bind interest of married woman] confers national agreement entered into by the chief specie-using countries

on the court a power of which many testators would not approve, and would probably be found not in any way to affect the internal transac- it would seem desirable that the attention of intending testators should tions of any country.


be called to this power in order that its exercise may b3 prevented if necessary. So far as I know, none of the books contain any trust

framed with a view to prevent the power arising, or give any suggesSTAMP DUTIES,

tions for framing such a trast. Might not the trust follow the ordinary [To the Editor of the Solicitors' Journal.]

form of trust of a protected life interest to a man, so that any order

of the court would cause & forfeitura of the married woman's interest ? Sir, If your correspondent “ Veritag" is right in thinking that section

B. 8 of the Stamp Act, 1870, has made no alteration in the previous law, there is 'good ground for concluding that the Solicitor of Stamps was

[As to the first point, see observations under the head of “ Current wrong in holding that, in the case put by Mr. Simey, a separate stamp is Topics.". The second point raised by our ingenious correspondent needs required.

a good deal of consideration. -Ed. S. J.] In Rushbrooke v. Hood (17 L. J. C. P. 58) certain copyhold lands were sold, and the purchaser borrowed part of the purchase-money from a third person to be secured by mortgage of the lands. A deed was

[To the Editor of the Solicitors' Journal.] entered into between the vendors, the purchaser, and the mortgagee, whereby, after reciting that “pursuant to an arrangement between the

Sir,---Cau any of your numerous readers inform me whether, if you parties and for the purpose of carrying the agreements for mortgage and vary the provisions of section 20 of the Conveyancing and Law of for purchase simultaneously into effectcertain surrenders of the lands Property Act, 1881, as to notice, you thereby lose the benefit of the had been made, the vendors covenanted for title with the mortgagee and

statutory power of sale ?

E. also separately with the purchaser. The court held that this deed

May 16. required only a single etamp. They seem to have gone a good deal upon [Section 19 (2) provides that "the provisions of this Act relating to the language of 12 Anne, st. 2, c. 9, s. 24; which differs from that of the foregoing powers (which include the power to sell], comprised either section 8 of the Stamp Act.

in this section, or in any subsequent section regulating the exercise of But, supposing that the latter section has added nothing to the scope those powers, may be varied or extended by the mortgage deed, and as of the former, it can hardly be contended that Mr. Simey's “declaration 80 varied or extended shall, as far as may be, operate in the like manner, substituting the rent for the land as security” is more obviously a “dis- and with all the like incidents, effects, and consequences, as if such varia. tinct matter” than the covenant for title with the mortgagee ; who was tions or extensions were contained in this Act." Under this provision a mere stranger to the purchaser, as such.

the period of the notice specified in section 20 (i.) may be made shorter The case of Doe d. Hartwright v. Fereday (12 Ad. & E. 23) makes or longer, but it would seem that notice cannot be altogether dispensed even more strongly for the same conclusion. Here the court seem to with, for that would not be varying or extending the provision of section have gone upon the language of 55 Geo. 3, c. 184,

20 (i.), but annulling it. -Ed. S. J.]


no books, that was sufficient evidence. Then it was said that section 19 did PROBATES.

not authorize the order at all. His lordship could not agree to that ; section [To the Editor of the Solicitors' Journal.]

19 was expressed in general terms. The words, in relation to his property,' Sir,“Will you allow me to make your columns the medium for sug- account. A discretion was given to the court. Both those objections were

were very large, and enabled the court to require anything in the shape of an gesting to the officials of the Principal Registry of the Probate Division taken in Ex parte Crawford (28 L. T., New Series, 244) and were the desirability of writing in the margin of grants of probate in words at overruled by Bacon, C. J., who said, “I cannot permit bankrupts to prescribe length (instead of in figures according to the present practice) the amount to their trustees what accounts they shall have; wby they shall not have this of duty paid by stamps on the affidavit filed ?

or that account.” The practice had ever since been in accordance with that In grants which I have obtained, and others which I have inspected, case. The bankrupt had sworn that he could not furnish any other cash since the last Act came into operation, I have frequently observed that account than that which appeared in his banker's pass-book. It was quite the figures have been very indistinctly written. For instance, a few days consistent with this that he could furnish additional particulars as to the items since I obtained a probate upon which I paid $111 for duty. The which were given there. If that was the true reading of bis affidavit, it was amount is certified in the margin of the grant by three very small no answer at all to the trustee's demand. If he could show by whom straight strokes which could, with the greatest ease, be converted into the moneys entered in the banker's book had been paid to him, this might other figures, and which a small blot would obliterate altogether.

supply most valuable information. But, if that was not the true 1, Salisbury.street, Strand, W.C., May 16.

JAMES S. Cole.

reading of the affidavit, his lordship could not attach any weight to it. It was impossible to suppose that the bankrupt could not give any information as to the sources from which tbe sums of money mentioned in the pass-book were deriveå. His lordsbip did not mean to attribute to the bankrupt any inten.

tion to deceive ; but his afidavit could not be true if it was read in the latter CASES OF THE WEEK.

Either way it was no answer to the demand. One friendly creditor said that he was willing to help the bankrupt to furnish an account, and no

doubt other creditors would do the same if he asked them. It could not be ADMINISTRAION OF BANKRUPT's Estáte—Power or Court TO ORDER BANK- called oppressive to require a man who had no books or papers to go and ask RUPT TO FILE CASH ACCOCNT-BANKRUPTCY Act, 1869, s. 19.-In a case of his creditors to help him make out an account. Till he had done that it Ex parte Moir, before the Court of Appeal on the 11th inst., á question arose would not do for him to say—I have destroged my books and papers and, as to the power of the court to order a bankrupt to file a cash account. therefore, I can do nothing. LINDLEY, L.J., also thought that the regisThe bankrupt had carried on an extensive business as a promoter of public trar's order was right. To show that he had jurisdiction to make it, it was companies. In November, 1881, before his adjadication, he bad filed a only necessary to read section 19. It was quite right that an order to file a liquidation petition, ander which be produced a statement of his affairs, cash account should not be made as a matter of course ; it would be oppressive which showed that his liabilities amoanted to £84,436, and his assets to and vexatious. But in this case the registrar had exercised bis discretion $21,038. He was examined privately by the trustee and before the rightly. The bankrupt said that he could furnish no cash account, but could registrar, as to his affairs, and the 17th of March was fixed for his public only refer to bis banker's pass-book. Possibly he could not do it offhand or examination. The examination was adjourned several times, and ultimately, without taking some trouble. But it was his duty to furnish an account, and on the 21st of April, Mr. Registrar Hazlitt

ordered that the bankrupt shoniá he must try to do his best. It was idle to say that he could do nothing. within fourteen days file a full and sufficient cash acconnt, containing the trustee was entitled to an account to the best of the bankrupt's ability, partioolars of his receipts and payments from the 1st of January, 1880, HOLKER, L.J., concurred. --Solicitors, J. B. Churchill; Emmanuel & until the 17th of November, 1881 ; and the public examination was further Simmonds. adjourned until the 19th of May. From this order the bankrapt appealed, and be made an affidavit in which he said that it was impossible for bim to Debt- Novation_EVIDENCE.—In a case of Ex parte Rivolta, before the give any cash account, as he had never kept any books. The only Court of Appeal on the 11th inst., the question arose whether there had been books which he had ever had were his banker's pass-booke, and these a novation of a cebt, and whether, therefore, a creditor, to whom a debt was he had given up to the trustee, and he had given the trustee all originally due jointly by two of the partners in a firm consistimg of three the information in his power concerning his estate. Section 19 persons, was entitled to prove for the debt in the bankruptcy of the three. provides that the bankrupt shall to the utmost of his power aid in the Mr. Registrar Murray held that the evidence did not prove a novation, and realization of his property, and the distribution of the proceeds among his that the proof could not be admitted. The Court of Appeal (Jessel, M.R , creditors. He shall produce a statement of his affairs to the first meeting and Lindley and HOLKER, L.JJ.) affirmed the decision. It was urgeć that of creditors, and shall be publicly examined thereon on a day to be named the authorities showed that very slight evidence was sufficient to prove a by the court, and subject to such adjourned public examination as the novation. Jessel, M. R., said that a great deal of nonsense had been talked court may direct. He shall give saob inventory of his property, such on the subject, and he thought it right to state his view of the law. It was list of his creditors and debtors, and of the debts due to and from a very simple proposition. A debt was due to a man by one person or by more. them respectively, submit to such examination in respect of his The creditor might agree with his debtors that, in consideration of his exproperty or his creditors, attend sach meetings of his creditors, wait at tinguishing or releasing the debt, they and some other person should become such times on the trastee, execute such powers of attorney, conveyances, liable to him. It was, in fact, the creation of a new debt in consideration of deeds, and instruments, and generally do all such acts and things in the ex'inguishment of the old one, An agreement to do this must be proved relation to his property and the distribation of the proceeds among like any other agreement. It had been said in some cases that very little his creditors as may be reasonably required by the trustee,

evidence was required to prove it. Bat, whether the evidence was to be may be prescibed by Rules of Court

, or be directed by the court by little or much, it must be sufficient to prove the agreement. The rules of any special order or orders made in reference to any particular bankruptcy, or

evidence were the same as in relation to the proof of any other agreement. If made on the occasion of any special application by the trustee or any

a man had been dealing with a firm, and he, with knowledge of the retirement creditor.” In support of the appeal it was urged that the order was oppres of one of the partners, continued dealing with the new irm, and accounts sive; that it had been made without evidence; and that section 19 gave the

were made out between him and the new firm, it was very easy for the judge court no jurisdiction to make it. The Court of Appeal (Jessel, M.R, and to come to the conclusion that he had released the old frn and had agreed to LINDLEY and HOLKER, L.JJ.) affirmed the decision. Jessel, M.R., said that accept the new firm as his debors. It was an inference of such an agreement the baukrupt was not an ordinary bankrupt. He seemed to have carried on from the course of business, but it must be an inference which the judge could a very extensive business in what was commonly called the promotion of properly draw from the circumstances. In the present case there was not companies. He said that he had never kept any books. In France a man in sufficient evidence of such an agreement. LINDLEY, L.J., concurred. business who acted in that way would be subject to very serious criminal pro. HOLKER, L.J., said that cases had been cited to show that judges formerly ceedings. There was no such law in England, but still ha was not exemptfrom thought that a very little would constitute an agreement of this kind. That censure, and he must not expect to be treated in the same way as an ordinary before which the question arose.

-SOLICITORS, R. A. Wilkins; Linklaters, such as counterfoils of cheques, vouchers, diaries, and letters? They weré Hackwood, go Co. lost or destroyed. Not one was forthcoming. Not a book or paper_was to be found, except some recent counter foils and a banker's pass-book. The regis. INSOLVENCY-CLOSE OF PROCEEDINGS-PROPERTY ACQUIRED BY INSOLtrar, who had had very great experience, and who knew that an order for VENT AFTER DISCHARGE IN THE INSOLVENCY-BANKRUPTCY REPEAL ACT, a cash account ought not to be made except in a very extreme case, bad 1869 (32 & 33 Vict. c. 83), s. 15.-On the 10th inst., the Court of Appeal made this order. The bankrupt's proceedings were certainly very suspicious (Jessel, M.R., and Lindley and HOLKER, L.JJ.) affirmed the decision of and unsatisfactory, and if the registrar had power to make the order, his lord- Řay, J., in Fordham v. Clagett (30 W. R. 467). The main question was as ship could not conceive a more proper order. It was said that the bankrupt to the construction of section 15 of the Bankruptcy Repeal Act, 1869 had no money or ought to have no money. But the Act required a bankrupt (32 & 33 Vict. c. 83). Section 4 of The Act provides that "the Court of to do a great many things which ordinarily cost money. With very few ex. Bankruptcy in London shall bave all the jarisdiction, powers, and authorities ceptions bankrupts did employ a solicitor, and generally an accountant; possessed at the commencement of the Bankruptcy Act, 1861, by the late certainly bankrupts of this class did. The Legislature knew perfectly well court for the relief of insolvent debtors in England (in this part of this Act ihat bankrupts somehow or other did find money. Therefore, the argument called the late Insolvent Debtors' Court), in relation to all matters then that it would cost money to make out a casa account was worth nothing. Mr. pending in that court, and not completed at the commencement of this Act, Registrar Pepys (the registrar in court) had told his lordship that the registrars and all matters at the commencement of this Act pending in are very careful in making such orders, because they might be very oppressive. that court or in the county courts under the Acts for the relief of Was there, then, jurisdiction to make such an order ? It was objected that insolvent debtors, shall (subject to the express provisions of this part of this it could not be made wi' hout evidence. Bu', if the court could see from the Act) be continued and completed therein as if this Act had not been passed." file of proceedings that there were circumstances which called for such nn By section 7: "Where a bankrupt has before adjudication of bankroptey order, it did not require cral evidence. If it appeared that a man had kept taken the benefit of any Act for the relief of insolvent debtors, nothing in the



Bankruptcy Act, 1869, shall interfere with the operation of the Act of which to interpret the words with regard to the intention of the Legislature. He he so took the benefit in respect of the liability of property acquired after thought that section 15 did not affect the disposition (f property to wbich a his discharge under that Act, if and so far as any such liability would bave right had been previously acquired. When it said that the insolvency should, existed if the Bankruptcy Act, 1869, had not been passed." By section 15: at the expiration of the time mentioned, be “ ipso facto closed,” he should “For the purpose of winding up and terminaling all matters which at the com- have thought, if there had been no other words, that this precluded any promencement of this Act may be pending in the late Insolvent Debtors' Court, ceedings upon the judgment. And the subsequent words showed that the and in county courts under the Acts for the relief of insolvent debtors, the rights of the insolvent were being dealt with. He was to have the same following provisions shall have effect, namely :-(1) Every insolvency shall at rights as if at the date of the closing he had obtained his di-charge in a the expiration of twelve months from the commencement of this Act, or at bankruptcy. He was to be free from all claims of his creditors against propthe expiration of twenty years from the date of the filing of the petition erty acquired since his discharge in the insolvency, as if he had obtained a (whichever last happens), te closed ; (2) before the expiration of the said discharge in bankruptcy. But the rights which he had already acquired twelve months or twenty years, as the case may be, any assignee, creditor, or under the Iosolvency Acts were not taken away. Looking at what the other person interested in an insolvency may apply in the prescribed manner to intention was, to put any other construction on the words would be to the court in which it is pending to have the close of such insolvency postponed attribute to tho Legislature an absurd and perverse meaning. LINDLEY, L.J., and the judge of such court, on sufficient cause being shown for the postpone. took the same view of the construction of section 15. Any other conment, may, subject to the Rules of Court, postpone such close for such period struction led to a conclusion to which no court ought to be driven if it was and on soch terms and conditions (if any) as he thinks just; (3) if the close possible to avoid it. It would put the insolvent in a worse position than he is postponed, the same proceedings may be bad before the expiration of the was before the Act was passed. HOLKER, L.J., concurred.-SOLICITORS, period of postponement as is provided by this section before the expiration of Horne, Hunter, & Birkett ; Turner & Low ; Parkers. ibe said twenty years; (4) if sufficient cause for postponement is not shown before the expiration of the said twelve months, or twenty years, or the period of posiponement (as the case may be), or of such further period as may,

COMPANY-WINDING UP-LANDLORD-LEAVE TO DISTRÁIN FOR RENTsubject to the Rules of Court, be allowed for an application by the court in

COMPANIES Act, 1862, ss. 85, 87, 163.-Ia a case of 1 1 re The Oak Pits which the case is pending, the insolvency shall, at the expiration of the said Col iery Company, before the Court of Appeal on the 16th inst., a question times, be ipso facto closed, and thereupon the insolvent, or ihe heirs, devisees, arose 29 to the claim of a landlord to be paid in full rent which had acorue i or personal representatives of the insolvent (if he is dead), shall be in the due after the commencement of the winding up of a company. In 1858 the same position, and have the same rights in all respects, as if the insolvent had company became lessees of the Oak Pits Colliery, under å lease which they been bankrupt, and had at the date of the closing obtained his discharge afterwards mortgaged by a sub-lease. In 1878 they negotiated with the lessor under the Bankruptcy Act, 1869." The facts were shortly these :

for a surrender of the lease, and for a new lease of the colliery, and also of In June, 1836, Clegett, being then in custody for debt, the minerals under 163 acres of adjoining property, and in July, 1878, the took the benefit of the Insolvent Debtors' Relief Act. He ob company agreed with the mortgageer to give them a mortgage of this new tained bis discharge, and be assigned to his creditors' Es ignee

leaze when obtained. Early in 1879 these negotiations resulted in an agree. all th property, which he possessed up to the time of his imprison- ment for a new lease at & dead rent of £400 per annum and certain royalties, ment. In November, 1836, under the usual warrant of attorney, judgment The company therenpon brought plant and machinery on to the 163 acres and Wag entered up against him in the name of the assi enee. Clagett subsequently sank three trial pits, in which coal was found. The surface of the 163 acres became insolvent three times, in 1845, 1849, and 1850. In July, 1854, he,

was not demised to the company, the agreement being that they should work being then a trader, was adjudicated a bankrupt under the Bankrupt:y Act, the coal under the 163 acres from the Oak Pits Colliery, and not by means of 1849, and in November, 1854, he obtained a certificate of conformity. In

an independent shaft sunk in the 163 acres. On the 28th of January, 1880, October, 1836, after the discharge in the first insolvency, his wife's rather the mortgagees took possession of the colliery, but did not interfere with the died intestate, the wife being his sole next of kin. No s-ttlement had been 163 acres or the minerals thereunder. On the 31st of Jaguary, 1880, a wind. made on the marriage of Mrs. Clagett. She died in March, 1877, and Clagett ing ap pet tion was presented, under which & winding-up order was made died in January, 1880. This action was brought to admini-ter his estate, and and a liquidator appointed. The liquidator did not take posses. an administration decree was made. Under this decree the assignee in the sion either of the colliery, which was already in the possession first insolvency applied for leave to prove for the amount of the judgment of the mortgagees, or of the 163 acres, or of the minerals under which had been entered up in his name. Kay, J., held that, by virtue of them. The workings in the colliery through which the minerals under the section 15 of the Bankruptcy Repeal Act, the insolvency was absolutely

163 acres were be got were full of water and the trial pits could not be closed, and that no proceedings could be taken to enforce the judgment used for working, purposes, so that the liquidator could not in fact have got at entered vp under it. JESSEL, M. R., said that tbe words of the Act were by no

or worked the minerals under the 163 acres. No steps were taken by the means clear. But at the date of its passing matters stood in this way. The liquidator to give them up to the landlord, and the plant and machinery used property of an insolsent up to the date of his discharge vested in his pro- by the company for making the trial pits remained on the 163 acres until they visional Essignee. After that date be kept whatever property ho acquired,

were sold in July, 1881, after previous unsuccessful efforts, for å sum of £179. subject to the right of the assignee to enter up judgment against him, which The landlord applied on May 30, 1881, for leave to distrain on the plant and could be enforced against any after.acquired property of the debtor to such an

inachinery, and Kay, J., made an order for payınent by the liquidator in full extent as the court should direct on an application made for the purpose. The of the whole

rent of £490 per annum which bad ac-rued since the commence. coort never allowed the judgment to be enforced to the extent of the whole of ment of the winding up. The Court of Appeal (BAGGALLAY, LINDLEY, and the insolvent's property. The insolvent was encouraged to earn his livelihood HOLKER, L.JJ.) reversed the decision. LINDLEY, L.J., who delivered the after he bad got his discharge. He was allowed to maintain himself in a judgment of the court, said that it appeared to him that the liquidator never reasonable way, and he was not deprived of the means of carrying on his bad possession of any part of the colliery or of the minerals under the 163 business. After providing for these things his past creditors were considered of the surface of the 163 acres was in the landlord, and not in the company,

The possession of the colliery was in the mortgageeg. The possession to be entitled to the surplus of his after-acquired property, so far as it was necessary to pay their delts. The Repeal Act of 1869 was intended to abolish although some plant and machinery belonging to the company were on this insolvency, and to assimilate the position of insolvents to that of bankrupts. property or in the trial pits. The possession of the minerals in the 163 acres In bankruptoy the property acquired by the bankrupt after his discharge was

had never in fact been taken by the company. The company had done no more free from any liability to his past creditors. The Legislature had to consider than ascertain where the minerals were. They had a right to take possession what was to be done with past insolvencies. They were to be put on the of them, but had not yet exercised that right. Even if the company could be same footing as future insolvencier, subject to not unduly interfering

with considered as having ever taken possession of them the liquidator never in any existing rights. What had always been the course taken by the Legislature way interfered with them. His possession, if any, of those minerals was a mere conin such cases ?. The exercise of existing rights, was cut down to a limited sequence of the equitable ownersbip in them remaining in the company subject period, but the holders of those rights were not deprived of them altogether. to the equitable mortgage. Another point of some importance appeared to bave This bad been done where the period of limitation fixed by a Statute of been overlooked in the court below. The surface of the 163 acres was not Limitations was to be shortened. So in this case it might have been expected to be leased to the company. Consequently the goods and obattels of the that the Legislature would say, You shall have a limited period within which company upon each surface could not have been distrained upon for rent you may enforce your judgment, and after that your right shall cease. There in arrear if a lease had been granted, and if no winding-up order had been might, however, be a reversionary interest which had not fallen into possession made ; for a distress for rent could only be made on the property held by at the end of the limited time, and in that case power would be given to the the tenant of the landlord and in respeot of wbich the rent was payable. court to postpone the closing of the insolvency if there were property which Qnite apart, therefore, from section 163 of the Companies Act, 1862, the might fall in. All this was fairly provided for by section 15, though his landlord could not have distrained upon the plant and machinery of the lordship agreed that it was expressed in language which was fairly open company on the 163 acres ; and it was only that plant and nacbinery which to more than one interpretation. A bankrupt who had obtained his be sought leave to distrain upon. It appeared to the court, therefore, that discharge under the Bankruptcy Act

, 1869, at the date of the the order appealed from could not be supported on the grounds on which closing of the insolvency would have been in this position, that the learned judge in the coart below based his decision. Nor could it, be all the property which te then had would bare vested in the trustee thought, be supported on any other grounds. The object of the windingin the bankruptcy, while his after-acquired property would have been free. up provisions of ibe Companies Act, 1862, was to put all unsecured creditors If section 15 were applied literally to an insolvent he would lose the prop- upon an equality and to pay them pari passu. A landlord who had not put erty which he had acquired since his discharge entirely, instead of losing only in a distress before the commencement of the winding up was an unsecured the surplus after providing for his maintenance and ihe carrying on of his creditor. He could prove against the company under section 158 for all rent business. This would amount to a complete forfeiture of all the property of in arrear at the time of bis proof; bat his right to distrain was taken away by the insolvent. Would not that be an absurd and monstrous construction of section 163 unless circumstances existed whicb, in the opinion of the court, an Act passed for the relief of insolvents? Would it not be a monstrous required it to give him leave to distrain under section 87. In all cases, however, injustice to deprive them of their property without any compensation? If in which a landlord sought to distrain after a winding-up order, or to be paid bis soch a construction could be avoided in no other way (which his lordship rent in priority to other creditors, he must show wby be should have such an thought it could), it could be avoided on the groand that the court was bound advantage over the other creditore, The decisions upon this subject might be

« PreviousContinue »